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TMI Blog2003 (3) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1947 (for short, "the Act"), and called upon to furnish returns thereunder in respect of the chargeable accounting periods ending on December 31, 1946, December 31, 1947, December 31, 1948 and March 31, 1949. Such returns were filed by the assessee on March 31, 1949, and provisional assessments under section 13 of the Act were completed on different dates between December 27, 1948 and January 22, 1951, by the Assessing Officer. On December 30, 1969, the regular assessments under section 12 of the Act were completed in respect of the aforesaid three chargeable accounting periods. The respondent-assessee filed appeals before the Income-tax Appellate Tribunal (for short "the Tribunal") impugning the regular assessment orders on various groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment orders were quashed was that the refund applications, which could have been made by the assessee, had become time barred. Our attention was invited to the judgment of the Allahabad High Court in CIT v. British India Corporation [1979] 117 ITR 651, in the assessee's case itself. The High Court, following the law laid down by this court in CIT v. Narsee Nagsee and Co. [1960] 40 ITR 307 held, that although the provisions of the Business Profits Tax Act, 1947, contained no period of limitation within which the regular assessment had to be made under section 12 of the said Act, such a period of limitation must be read into the provisions of the Act on account of the prescription under rule 4A of the Business Profits Tax Rules which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not amount to a claim for refund within the meaning of section 50 as modified by rule 4A of the Business Profits Tax Rules. As to the first point, the question of limitation is a mandate to the forum and, irrespective of the fact whether it was raised or not, the forum must consider and apply it, if there is no dispute on facts. Section 50 of the 1922 Act, as modified by rule 4A, is a provision of the statute which was required to be applied by the High Court at the time of considering the relief, if any, to be granted in the writ petition. The claim being barred by time, the writ petition could not have been allowed nor could any relief be granted. The first contention, therefore, fails. Turning to the second contention, use of the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had succeeded. The basis for such success itself was that the respondent's right to claim refund had become time barred under section 50 of the 1922 Act, as modified by rule 4A. Learned counsel for the respondent urged that, though for the purpose of deciding the validity of the regular assessments, the assessee's right to seek refund may have been considered to be time barred, when it comes to deciding the validity of the refund claim, we must hold that it is not time barred. This argument, in our view, is an echo of what the mimamsakas pejoratively dismissed as "ardha jarateeya nyaya". (The argument that an egg can be partly used for eating and partly for hatching). Its western counter-part is: to have the cake and eat it. The contention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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