2010 (6) TMI 736

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.... ADARSH KUMAR GOEI J.-This order will dispose of C.W.P. No. 6555 of 2007 and C.W.P. No. 11149 of 2007. The matter has been placed before us in the light of the order of the honourable Supreme Court dated September 18, 2009, inter alia, to the following effect: "In our view, the High Court was required to analyse section 44(2) in the context of the facts of these cases. This has not been done. ....

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....tioner by filing C.W.P. No. 11149 of 2007. Contention raised on behalf of the petitioner was that the finding that State will be adversely affected by making refund, was without any factual or legal basis, as even for subsequent assessment years, i.e., assessment years 2004-05, 2005-06 and 2006-07, refund of about Rs. 94 lacs was due, which was not disputed by the State. The factual aspect, as men....

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....invalid, the next question which requires determination is whether the petitioner is entitled for interest on the amount of refund." On appeal being filed by the State, the matter has been remanded to consider the effect of section 44(2) of the Act, as mentioned above. However, the honourable Supreme Court directed the Department to refund the amount, which according to the petitioner has since....

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.... the refund and refer the case to the Commissioner for order. The orders passed by the Commissioner shall be final. (2) The period during which the refund remains so withheld shall be excluded for the purpose of calculation of interest under section 43." It is clear from bare perusal of the above provision that section 44(2) providing for exclusion of period during which refund was withheld ....