1986 (9) TMI 122

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....-79, 1979-80 and 1980-81. After the assessments were completed at loss figure for the first year, nil income for the second year (because of carry forward of losses) and again loss for the third year in respect of the business of taxturing/crimping and sale of art silk yarn vide assessment orders dated 5-8-1981, 18-3-1982 and 22-3-1983, respectively, the assessee vide its three applications all dated 28-5-1983 filed under section 154 pointed out that credit for tax deducted at source amounting to Rs. 5,423, Rs. 34,419 and Rs. 37,742 had not been given, which may done and refund issued. Getting no respond, on6-2-1984 the assessee addressed a common application captioned under sections 154 and 243 requesting for refund along with interest. ....

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....refunded from the date immediately following the expiry of the period of three months aforesaid to the date of the order granting the refund. Explanation : If the delay in granting the refund within the period of three months aforesaid is attributable to the assessee, whether wholly or in part, the period of the delay attributable to him shall be excluded from the period for which interest is payable. (2) Where any question arises as to the period to be excluded for the purposes of calculation of interest under the provisions of this section, such question shall be determined by the Commissioner whose decision shall be final." "246(1) Subject to the provisions of sub-section (2), any assessee aggrieved by any of the following order....

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.... taken by the ITO under section 154, we must also presume that notwithstanding the provision of sections 243 and 246(1)(f) the Legislature intended that rectification request would result to the detriment of the taxpayer in the sense that he should be deprived of right of appeal by resorting to rectification proceeding if a particular order is not made in the original assessment, a presumption which we are not prepared to make. In the first place while framing assessments the ITO did not give credit for TDS and when the mistake was pointed out, he did not even think it fit to analyse as to how the request for interest on refund was untenable and not correct. The learned Commissioner (Appeals) was not correct in equating a taxpayer's agitati....