9911796707
TMI Blog2002 (4) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... uant to the said order, the assessing authority on April 12, 2001, had passed an order rejecting the claim for refund made by the petitioner. It is this very order, which has since been challenged in this writ petition. Submission on behalf of the petitioners: Learned counsel for the petitioners contends that since the order dated April 12, 2001, has been passed pursuant to the order dated January 22, 2001, in Writ Petition No. 107 of 2001, by this court, therefore, it is this court alone has the jurisdiction to deal with the said order. He secondly, contends that ex facie the order is so bad that no scrutiny of the order is necessary. On the face of it, it is wholly perverse. As such, this court should direct the matter to be remitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso includes interest, being a combined order cannot come under section 246(1)(k) of the 1961 Act. Therefore, this court should remit back the matter to an officer higher than the assessing authority as specified in section 246(1)(k) of the Act being the Deputy Commissioner of Income-tax (Appeals) to whom it should be remitted. Can the order be brought within the purview of writ jurisdiction? After hearing learned counsel for the respective parties, it appears that the petitioner had prayed for refund of some amount of tax paid in excess for the assessment years between 1971-72 till 1997-98. This court in the earlier writ petition had directed for the early disposal of such application. In fact, it had not entered into the merits and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be invoked in case the tax collected under a provision of law, which is ultra vires and the order is a nullity, which need not be quashed or set aside. In such a case writ jurisdiction can be exercised for compelling refund (State of M.P. v. Bhailal Bhai [1964] 15 STC 450, 459 (SC) and S.A.L. Narayana Row, CIT v. Model Mills Nagpur Ltd. [1967] 64 ITR 67 (SC)). But such relief cannot be granted if the person entitled to refund is guilty of unreasonable delay in approaching the court or where in the circumstances of a particular case, the court thinks that the exercise of its extraordinary writ jurisdiction is not proper, it may decline to interfere (Gita Devi Aggarwal v. CIT [1970] 76 ITR 496 (SC) and Champalal Binani v. CIT [1970] 76 ITR 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which it is so passed. The principal object with which the order is passed, determines the character of the same. In this case, it was an order of refund whether it is advance tax paid in excess or any deduction made exceeding the tax determined or any interest that might have accrued on advance tax or any interest that might have accrued on the excess amount after deducting the tax, may be a component of the amount liable to be refunded. Any order directing refund of the principal or the interest, if any, would be an order of refund. Inasmuch as, it is the order of refund, which is the principal object that is attempted to be subserved by such order. Therefore, the character of the order would be determined by the principal object, namel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fers the right of appeal on any assessee aggrieved by an order under section 237, whether the order refuses refund or refunds less than the amount of refund claimed by the assessee. This right of appeal to an assessee is available, if he is aggrieved by any order in respect of refund of any amount, which the assessee claims to be excess of the tax properly chargeable from him under any of the provisions of the Act. Any order of the Assessing Officer savouring of this character is an order under section 237 for the purpose of the right of appeal conferred on the assessee under this clause. In Smt. Shantibai v. CIT [1984] 148 ITR 49 (MP), it was held that an order refusing to refund the amount of tax adjusted by the assessee becoming refundab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puty Commissioner of Income-tax (Appeals), for which no aid of this court is necessary. What the petitioner can directly do by preferring an appeal before the Deputy Commissioner of Income-tax (Appeals), for that he cannot seek aid of this court only to route the appeals through writ jurisdiction. Such appeal is definitely an adequate alternative remedy. The question is a question of determination of certain facts relating to the amounts refundable. This court cannot undertake such an exercise, particularly in respect of matters, which are not related to law. The writ court exercises revisional jurisdiction, it does not examine as to how far the order is justified on facts. It can be examined only in appeal. This court cannot enter into ..... X X X X Extracts X X X X X X X X Extracts X X X X
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