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TMI Blog2002 (8) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act of 1961. In the result, we answer the question in the negative, i.e., in favour of the Revenue and against the assessee. - - - - - Dated:- 5-8-2002 - Judge(s) : Y. R. MEENA., SHASHI KANT SHARMA. JUDGMENT On an application filed under section 256(1) of the Income-tax Act, 1961, the Income-tax Appellate Tribunal, Jaipur, has referred the following question for our opinion: "Whether, on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that the Assessing Officer erred in law in withdrawing the interest allowed under section 244(1A) and in cancelling the order dated May 21, 1991, withdrawing the interest under section 244(1A) Of the Income-tax Act, 1961?" The assessee-Hin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t converted into a payment on the date of the initial assessment of the tax due for the assessment year concerned. Carrying that sentence to its logical extent, the assessee must be held entitled to interest on the amount of advance tax also to the extent it is found refundable from the date of the excess payment right up to the date of actual refund. Reiterating the same legal position in the case of CIT v. Dalmia Cement (Bharat) Ltd. [1982] 137 ITR 681 (Delhi), it was held that the Income-tax Officer had no jurisdiction to revise his earlier order to withdraw the interest by resort to the provisions of section 154 of the Act on the ground that there was a mistake which was required to be rectified, because the question whether the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d after giving effect to the appellate order for the assessment year 1976-77. He placed reliance on the decision of the Punjab and Haryana High Court, in the case of CIT v. Hansa Agencies P. Ltd. [1998] 234 ITR 271 and the decision of the apex court, in the case of Modi Industries Ltd. v. CIT [1995] 216 ITR 759. The relevant provisions of section 244(1A) of the Income-tax Act, 1961, read as under: "244. (1A) Where the whole or any part of the refund referred to in subsection (1) is due to the assessee, as a result of any amount having been paid by him after the 31st day of March, 1975, in pursuance of any order of assessment or penalty and such amount or any part thereof having been found in appeal or other proceeding under this Act to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout regard to the fact that the assessment order was set aside by the Assistant Commissioner of Income-tax the amount of TDS lost its such character and the same was deemed to have been paid in pursuance of the order of assessment. Hence, section 244(1A) would be clearly attracted." In National Agricultural Co-operative Marketing Federation of India Ltd. v. Union of India [1981] 130 ITR 928, the Delhi High Court observed as under "The second provision to which we would like to refer is the provision contained in section 244(1A) which has also been extracted earlier. This is a new provision introduced by the Finance Act of 1975. It provides that where payments of tax are made by an assessee after March 31, 1975, he would be entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest was payable did not vary due to the reduction or enhancement of tax as a result of any subsequent proceeding. But with effect from April 1, 1985, while the period for which interest was payable remained constant, the amount on which the interest was payable, varied with the variation in the quantum of refund as a result of any subsequent orders. (ii) If any tax is paid pursuant to an assessment order after March 31, 1975 (which will include tax deducted at source and advance tax to the extent the same has been retained and treated by the Income-tax Officer as payment of tax in discharge of the assessee's tax liability in the assessment order), becomes refundable wholly or in part as a result of any appellate or other order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the advance tax paid or TDS has been deducted that be treated as payment after April 1, 1975, and if the total tax paid is in excess of the tax payable on assessed income, the tax paid prior to April 1, 1975, but assessment made after April 1, 1975, that cannot be ignored for the purpose of interest under section 244(1A) of the Act. In the case in hand, the facts are not in dispute that the assessment had been made on January 22, 1956. On the date of assessment, not only the provisions of sub-section (1A) of section 244 was not forming the part of the Income-tax Act, 1961, but even the Income-tax Act, 1961, was not in existence, therefore, there is no question of payment of interest under section 244(1A) of the Act, on the excess amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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