9911796707
TMI Blog1980 (8) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... adjourned in terms of section 3 of the Kerala High Court Act." The petitioner is a charitable institution. For the assessment years 1959-60 and 1962-63 to 1965-66, the Agrl. ITO, Alwaye, fixed the tax payable by the institution under the Agrl. I.T. Act, 1950, for short, "the Act", at Rs. 2,22,454.41 (for all the years together). This amount was fully paid in time though the petitioner challenged the orders of assessment in appeals. By a common order dated July 22, 1967, all the appeals were allowed, setting aside the orders of assessment on the ground that the income of the institution is income derived from properties held under a trust solely for religious and charitable purposes and, therefore, exempt from levy of agricultural income-tax. The order also contained a direction in the following terms: " Tax paid if any shall be refunded." This entitled the petitioner-institution to get a total refund of Rs. 2,22,454.41. When the assessment orders of 1969-70 and 1970-71 with notices of demand were served on the petitioner by a letter of March 15, 1971 (marked as Ex. P-2 here), the petitioner prayed for adjustment of the amount due to the institution on account of the aforementi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax of Rs. 86,697.90 determined and demanded from the petitioner for the assessment year 1971-72. In its reply to the notice, the petitioner once again prayed for the adjustment, of the refund due to it, against the tax that had fallen due subsequently. In the circumstances, the petitioner also made two representations to the Secretary, Board of Revenue, and the Government (addressed to the Secretary, Govt. of Kerala (Taxes) ) praying for passing appropriate orders for directing the concerned authority to refund the tax amount pursuant to the earlier order of the AAC, (Ex. P-1). Copies of these two representations are marked as Exs. P-14 and P-15. Having failed to get the authorities to comply with its request for refund or adjustment of the amount towards the subsequent demands, the petitioner-institution has approached this court praying for a writ in the nature of mandamus directing the assessing authority to pass an order refunding the tax amount of Rs. 2,22,454.51 paid as per the orders of assessment for 1959-60 and 1962-63 to 1965-66, pursuant to Ex. P-1 order of the AAC and for quashing the notice, Ex. P-10, issued by the Commr. of Agrl. I.T. or in the alternative to iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f revising the order of the AAC. One such possibility was suo mota revision of the appellate order under s. 34 of the Act. When notice to that effect was issued to the petitioner, it was objected to on the basis of the decisions of this court in George Oommen v. Commr. of Agrl. LT. [1964] 52 ITR 977 (Ker) and Smt. Lucy Kochuvareed v. Commr. of Agrl. LT. [1971] 82 ITR 845 [FB]. Therefore the counter-affidavit states, the proposal could not be implemented. It is again pointed out that in the interests of the State revenue the possibility of revising the orders of the AAC was explored. Finally, it is said in the counter-affidavit that under s. 50 of the Agrl. I.T. Act, no claim to any refund shall be allowed unless it is made within three years from the last date of the financial year commencing next after the expiry of the previous year in which the agricultural income was received. The assessment orders for 1959-60, 1962-63 to 1965-66 were made on January 6, 1960, January 30,1963, February 10, 1964, October 20, 1964, and January 20, 1966, respectively. The appellate orders were passed on July 12, 1967. The assessee applied for refund only on March 15, 1971, long after three years an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0] 40 ITR 618 (SC), such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic principles of administration of justice based, as it is in this country, on a hierarchy of courts. If subordinate tribunal refuses to carry out the directions given to it by superior tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice. There was no necessity for the petitioner to make an application in the matter. It may here be noted that under s. 44(2) of the Act the appellate or revisional authority, if satisfied that the amount paid towards the tax by the assessee is in excess of the amount with which such person is chargeable, shall cause a refund to be made by the Agrl. ITO of any amount found to have been wrongly paid or paid in excess. Section 50 is not attracted in such cases. As regards subsequent assessments, which no doubt are legal and enforceable, justice demands that before the petitioner is coerced to make the payments as per the assessment orders, amounts refundable to it is paid or adjusted so that the demand may be executed only for the balance. Section 48 of the Act enables the officer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be justified in interfering with the discretion exercised by the High Court, in dismissing the writ petitions, which were filed only for the purpose of obtaining the refund, and in directing them to resort to the remedy of suits. Obviously this cannot be of any help to the respondents on the facts and circumstances of this case. The next authority that was relied on by Mr. Dharmadan, the learned Govt. pleader, was the decision of the Supreme Court in Geep Flashlight v. Union of India [1977] AIR 1977 SC 456. In that case, the appellant before the Supreme Court was a manufacturer of dry battery cells. He had received a consignment of ten metric tons of manganese dioxide on which the Asst. Collector of Customs had levied a duty under Tariff item No. 28. This levy was confirmed in appeal by the Appellate Collector but in revision the revisional authority held that the goods should be assessed under Tariff item No. 26 and ordered a refund of duty. The appellant asked for refund and sent reminders to the customs authorities for the refund. Finally, he issued a notice under s. 80 of the CPC for the institution of a suit for the recovery of the money directed to be refunded. About fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orari and mandamus were misconceived. There was no order either judicial or quasi-judicial which could attract certiorari. No mandamus could go because there was nothing which was required to be done or forborne under the Act. The issue of the notice in the case required the parties to represent their case. There was no scope for mandamus to do any duty or act under the statute. A writ of prohibition could not have been issued for the obvious reason that the Central Govt. had jurisdiction to revise. We are not able to understand how that case would be related to the facts of the present case. It might be noted that this is a case where the petitioner's right under art. 19(1)(f) had been infringed. By the order of the appellate authority the petitioner became entitled to a refund of the tax paid. The amount concerned became its property. See in this connection the observations in the majority judgment rendered by Bhagwati J. in Madan Mohan Pathak v. Union of India [1978] 1 LLJ 406; AIR 1978 SC 803, where the earlier Supreme Court cases have been referred to. Therefore, in the circumstances, we should issue a writ in the nature of a mandamus directing the assessing authority to p ..... 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