9911796707
TMI Blog2024 (10) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... cation by the respondents of their own records, cannot be a ground to deny the refund. As in the instant case, the refund sought for is in pursuance of the respondents own decision dated 30 May 2002 i.e., the appeal effect order. The petitioner immediately had made an application dated 11 September 2002, requesting for the refund of the determined amount in light of the appeal effect order. However, the respondents failed to deal with the said request. Therefore, the facts of the case cited by the respondents are clearly distinguishable. The respondents are estopped from contending that the petitioner sought enforcement of refund belatedly. In view of the aforesaid, the sum already determined by the respondents to be refundable to the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner under protest. 3. Thereafter, the petitioner preferred an appeal against the assessment order dated 28 February 2000 before the Commissioner of Income Tax (Appeals) [ CIT (A) ], who vide order dated 21 March 2001 disposed of the said appeal under Section 250 (6) of the Income Tax Act, 1961 [ Act ] directing that the petitioner was entitled to partial refund of taxes paid under protest. Consequently, under Section 143(3) read with Section 250 of the Act, the AO at Mumbai passed an order on 30 May 2002 for AY 1997-98, determining the amount of refund to be Rs. 1,25,77,290/-. 4. Subsequently, an application dated 11 September 2002 was filed by the petitioner with the AO at Mumbai, requesting for release of refund amount i.e., Rs. 1,25, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t reminder letters dated 18 July 2017, 06 June 2018, 09 October 2020 and 15 October 2020, the petitioner was compelled to approach the writ jurisdiction of this Court. According to learned counsel, the respondents have failed to comply with the order of refund despite considerable lapse of time, which has caused serious financial hardship to the petitioner. 8. Learned counsel contends that the act of withholding of refund amount by the respondents amounts to dereliction of duty and is contrary to the scheme of the Act and the orders passed by competent forums. He has prayed for an order for refund of the amount along with the applicable interest. 9. On the contrary, learned counsel for the respondents vehemently opposes the submissions canv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave heard the learned counsels appearing on behalf of the parties and perused the record. 12. The primary grievance of the petitioner in the instant case which requires consideration is whether the respondents are justified in withholding the refund amount on the pretext of lack of mechanism to verify the claim of the petitioner. A bare perusal of the facts would undeniably indicate that the rights of the petitioner in lieu of the raised demand paid for AY 1997-98 were crystallized in its favour with the passing of the appeal effect order dated 30 May 2002, whereby, the refund was determined to be amounting to a sum of Rs. 1,25,77,290/-. 13. As a natural corollary, the respondents, in all fairness, ought to have immediately refunded the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of M.P. [(2015) 11 SCC 708], wherein, it was held that Article 265 imposes a limitation on the taxing power of the State insofar as it shall not levy or collect tax by a mere executive fiat and rather, it has to be done only by an authority of law. The act of retaining the refund amount would tantamount to imposition of tax without any authority of law. 16. A plain reading of Article 265 in juxtaposition with Article 300A of the Constitution of India, reflect that the said provisions prohibit the State from withholding any money and in fact, the State is ostensibly saddled with the duty to refund any amount collected as tax, which it is legally bound to return to the assessee. The said position attains greater significance when the right ..... X X X X Extracts X X X X X X X X Extracts X X X X
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