9911796707
TMI Blog2003 (1) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... purported to clarify its earlier order passed in the assessee's writ petition on May 21, 1993. Before considering the language of the order dated May 21, 1993, and the interpretation put thereon by the impugned decision, the background in which the order dated May 21, 1993, was passed is necessary. The appellant had opened a Foreign Currency Non-Resident Account (FCNR)/SDR account in the Indian Overseas Bank, Tolstoy Marg, New Delhi, and had deposited in the same year a total amount of US $ 1,35,405. In September, 1985, the Income-tax Officer sought to provisionally attach this account under the provisions of section 281B of the Income-tax Act, 1961, and called upon the appellant to file his return. The appellant filed a "nil" return whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 1988-89 on the interest which had become due to the appellant under section 244 of the Act. The Assessing Officer found that a sum of Rs. 6,83,244 was payable by way of tax on the interest. Penalty proceedings were also initiated by the Assessing Officer for non-filing of the return under sections 271(I)(a), 273, 271(1)(c). The appellant amended his writ petition and prayed for "(a) restoration of his Non-Resident Indian Account in foreign currency with the Indian Overseas Bank which after attachment by the second respondent had been withdrawn on January 11, 1986, and June 12, 1986, and (b) for quashing all orders under section 241 of the Act and the assessment order for the assessment year 1988-89 creating a demand of tax and all oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities. Our attention has been drawn to the various findings of the High Court where the action of the respondent and the initial orders under sections 241 and 245 of the Act were held to be illegal and without jurisdiction. According to the appellant, the language employed in the order of the High Court makes it quite clear that it was not directing refund in terms of or under any provisions of the Income-tax Act but was directing restitution of the status quo ante. According to the respondent, the appellant became entitled to the refund because of the Tribunal's order under section 240 of the Act. The appellant became entitled to interest after the rejection of the application under section 256(2) by the High Court under the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me shall be obtained by the Indian Overseas Bank" We are of the view, that the appellant is correct in his submission that the order dated May 21, 1993, clearly indicates that the court had directed the payment of interest in a manner so as to restore the appellant to the position that the appellant enjoyed on and from at least the dismissal of the application under section 256(2) of the Act. The High Court in its order dated May 21, 1993, has considered the prayer of the appellant seeking restoration and construed the prayer to mean that the appellant wanted orders enabling him "to have his non-resident Indian account in foreign currency with interest accrued thereon in foreign currency restored ante". Therefore, when the court allowed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the parties, which is benefiting neither the appellant nor the respondent, we adjourn the matter for a period of six weeks in order to finally determine the actual amount which would be payable in terms of the High Court's order by the respondent to the appellant. It is recorded that as far as the appellant is concerned, he has already given his calculation to the Commissioner of Income-tax as far back as in March, 1994, and a copy thereof is on record. The Department shall take action within six weeks and intimate this court its decision on the calculation submitted by the appellant. In default, the figures as mentioned by the appellant will be taken to be correct and the respondent will be liable to pay the difference to the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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