Jwala Prasad Sikaria, Satya Narayan Sikaria, Banwarilal Sikaria, Basudeo Sikaria and Gangadhar Sikaria Vs Commissioner of Income Tax and Others

Hansaria, J.@mdashAn interesting point of law has arisen for decision in these civil rules which are connected with the assessment year 1960-61. The point is whether interest has to be paid on the amount refunded to an assessee, who was assessed under the Indian Income Tax Act, 1922, hereinafter the "old Act", but after coming into force of the Income Tax Act, 1961, hereinafter the "new Act". The five petitions are by five different assessees, but a common question of law is involved. We have, therefore, heard these petitions together and are disposing of the same by this common order.

2. What had happened was that the returns for the assessment year in question were filed on December 6, 1960. But the assessment came to be made after the commencement of the new Act. Demands of varying amounts were raised in the case of each assessee. The amount was realised from the assessees some time in 1965-66. On March 7, 1967, the appeals filed by them against the assessment were allowed and the demand was set aside. The amount paid by the assessees was refunded to them on July 7, 1972. The only question for our determination is whether they are entitled to interest on the refunded amount.

3. The assessees requested for payment of interest but the same was denied by the taxing authority on the ground that the assessments were completed under the provisions of the old Act and, hence, the provisions of Section 244 of the new Act are not applicable and consequently, the assessees are not entitled to get interest. Being aggrieved, the assessees have approached this court by invoking article 226 of the Constitution.

4. In support of the assessees'' case, Shri Bhattacharjee has referred us to certain provisions of Section 297 of the new Act. For the sake of convenience, we may quote the relevant parts of this Section :

"297. Repeals and savings.--(1) The Indian Income Tax Act, 1922 (11 of 1922), is hereby repealed.

(2) Notwithstanding the repeal of the Indian Income tax Act, 1922 (11 of 1922) (hereinafter referred to as the repealed Act),--

(a) where a return of income has been filed before the commencement of this Act by any person for any assessment year, proceedings for the assessment of that person for that year may be taken and continued as if this Act had not been passed ;...

(i) where, in respect of any assessment completed before the commencement of this Act, a refund falls due after such commencement or default is made after such commencement in the payment of any sum due under such completed assessment, the provisions of this Act relating to interest payable by the Central Government on refunds and interest payable by the assessee for default shall apply.

5. It is urged by learned counsel that by virtue of Section 244 of the new Act, an assessee is entitled to interest on refund in case of delay in paying the amount of refund, if the assessment has been made under the new Act. It is contended by referring to Section 297(2)(i) of the new Act that, if, in the present case, the assessment had been made before April 1, 1962, which is the date of commencement of the new Act, the assessee would have been entitled to payment of interest as refund became due after the passing of the appellate order on March 7, 1967, which was after the commencement of the new Act. Learned counsel contends that the assessees may not lose interest which is in the nature of compensation and not penalty as held in Central Provinces Manganese Ore Co. Ltd. Vs. Commissioner of Income Tax, only because due to some lapse or other reasons, the assessments were not completed before the commencement of the new Act, though returns were filed long before the commencement of the new Act We are in agreement with Shri Bhattacharjee when he says that the Legislature could not have taken the illogical step of allowing interest to those assessees whose assessments had been completed before the commencement of the new Act but denied the same to those who were assessed under the old Act after the commencement of the new Act. Such a provision would have been "illogical and unjust" as stated in a similar context in D''Souza (A. J.), A.J. D''souza, Commissioner of Income Tax and Others Vs. Bombay Burmah Trading Corporation Ltd., .

6. Shri D. N. Choudhury, appearing for the Revenue, has, however, contended that the law to be applied in the case of assessment is, the one which is/was in existence in the assessment year in question unless otherwise expressly provided for or unless the same follows by necessary implication. This is the view expressed in Commissioner of Income Tax, West Bengal Vs. Isthmian Steamship Lines, [1951]20ITR572(SC) and Karimtharuvi Tea Estate Ltd. Vs. State of Kerala, Learned counsel has also drawn our attention to Kalawati Devi Harlalka Vs. Commissioner of Income Tax, West Bengal and Others, and S. Sankappa and Others Vs. The Income Tax Officer, Central Circle II, Bangalore, wherein it has been held that the word "assessment" can bear a very comprehensive meaning : it can comprehend the whole procedure for ascertaining and imposing liability upon the taxpayer. In Kalawati Devi Harlalka Vs. Commissioner of Income Tax, West Bengal and Others, it was, therefore, stated that the proceeding u/s 33B would also be a part of the assessment proceeding of which mention has been made in Section 297(2)(a) of the new Act. It has also been submitted by Shri Choudhury that no right vested in assessees under the old Act to claim interest in a case of the present nature inasmuch as no interest was payable under the old Act. To substantiate this submission, we are referred to Reliance Jute and Industries Ltd. Vs. Commissioner of Income Tax, West Bengal,

7. These are well-settled propositions of Income Tax law. The question is whether payment of interest on the refunded amount can be said to be a part of assessment proceedings. In this connection, we are referred to the Income Tax (Removal of Difficulties) Order, 1962, wherein it has been laid down that proceedings relating to registration of a firm or a claim for refund of tax would be regarded as a part of assessment proceedings.

8. Thus, if no interest was payable on refund under the old Act, under which Act the assessment was made, no interest could have been claimed by the assessees. But granting of interest under the new Act and that too to the assessees who were assessed under the old Act before the commencement of the new Act has created a queer position, because this interest cannot be claimed by those whose assessments were completed under the old Act but after the commencement of the new Act. The denial of interest to the latter category of assessees has to be regarded as illogical, unjust and discriminatory. We are, however, saved from reaching such a conclusion inasmuch as the general law of the land would allow interest to be granted to the taxpayers like the assessees at hand. We have said so because, reference to some of the decisions of the apex court rendered in different contexts would show that we can grant interest to the petitioners also. We may first refer in this connection to State of Kerala and Others Vs. M. Padmanabhan Nair, wherein interest was granted to the respondents where delay had occurred in payment of terminal benefits. This shows that a citizen is entitled to payment of interest due to delay even if there be no statutory provision in this regard.

10. The grant of interest to owners whose property was requisitioned under the provisions of the Requisitioning and Acquisition of Immovable Property Act, 1952, was upheld in Abhay Singh Surana and Others Vs. Secretary, Ministry of Communication and Others, While granting interest, the decision of the Privy Council in Inglewood Pulp and Paper Co. Ltd. v. New Brunswick Electric Power Commission AIR 1928 PC 287 was also borne in mind wherein it was stated that AIR 1987 SC 2178 : "upon the expropriation of land under statutory power, whether for the purpose of private gain or of good to the public at large, the owner is entitled to interest upon the principal sum awarded from the date when possession was taken, unless the statute clearly shows a contrary intention". Reference was made to many other decisions and it was accepted that the claim for interest in such a case proceeds on the assumption that when the owner of an immovable property loses possession of it, he is entitled to claim interest in place of the right to retain possession. It would be of some interest to point out that even before the decision of the Supreme Court in Abhay Singh Surana and Others Vs. Secretary, Ministry of Communication and Others, a Division Bench of this court, after noting various decisions of the Supreme Court and of the Privy Council, had come to the conclusion in Deputy Commissioner Vs. Mamat Kaibarta (deceased by L.Rs.) and Others, that interest is payable though not specifically provided for when property is requisitioned or acquisitioned under the Requisitioning and Acquisition of Immovable Property Act, 1952. Indeed, such a view had been first taken in FA No. 132 of 1973 (Deputy Commissioner v. Naren Chandra Kalita), which was disposed of on December 14, 1982. For the type of cases at hand, we would say that the right to claim interest accrues when an assessee is deprived of his legitimate dues beyond a certain period.

11. The aforesaid decisions have helped us in not arriving at a conclusion which would have been otherwise irrational, unjust and discriminatory. We would, therefore, award interest to the petitioners also. The interest would, however, be deemed to have accrued after expiry of three months from the end of the month in which refund had become payable. We have taken this clue from what finds place in Section 244 of the new Act. As to the rate at which interest shall become payable, we would state that the same shall be at the rate which was applicable to grant of refund under the new Act at the relevant time.

12. The result of the foregoing discussion is that the rule in all these petitions is made absolute. We would, however, leave the parties to bear their own costs.