TaxTMI 
TaxTMI 
2023 (7) TMI 349
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....on original petitioner to pay, on or before 31st July 2007, the additional tax on the income disclosed before the Settlement Commission and interest thereon notwithstanding any extension of time already granted by the commission. It is petitioners' case that on facts it is an erroneous finding because original petitioner had infact paid more than the amount he was required to pay. 3. At the outset, Mr. Joshi stated that petitioner is not pressing prayer clause (d) by which petitioner was challenging the constitutional validity of Section 245HA and Section 245D (2D) of the Act. Rule was issued on 24th March 2008. 4. Original petitioner, as sole proprietor, carried on business as builder and developer in the name and style M/s Gopal Constructions. On or about 27th July 1993 there was a search carried out at the residence and the business premises of original petitioner under Section 132 of the Act. On 25th April 1997 petitioner filed settlement application under Section 245C(1) of the Act for AY-1989-90 to 1996-1997. The application was admitted on 22nd April 1998 under Section 245D(1) of the Act. As per the said order of admission of the Settlement Commission, original petitio....
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....ection 245HA(1)(ii) of the Act. 8. Mr. Joshi submitted that the conclusion of respondent no. 1 that petitioner had not complied with the amended provisions of Section 245D (2D) of the Act as amended was factually incorrect. 9. Mr. Suresh Kumar of course stood by what the affidavit in reply contained, justifying the impugned order. 10. We have with the assistance of Mr. Joshi and Mr. Suresh Kumar perused the petition and affidavits in reply filed and also the rejoinder. The only issue remains in the petition, petitioner having withdrawn the constitutional challenge to Section 245HA and 245D (2D), is whether original petitioner had paid the amounts of tax and interest on or before 31st July 2007. 11. As noted earlier by its letter dated 29th November 2007, respondent no. 2 had provided to petitioner a statement containing the working of tax and interest payable. The same, for ease of reference is reproduced hereinbelow and marked Statement-A. Statement A Shri S. N. Malpani TOTAL TAX AND INTEREST PAYABLE Sr A.Y Income Offered Tax Payable 234 A 234 B Total 1. 1989-90 1,56,945 60,611 19,517 81,640 1,61,768 2. 1990-91 ....
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....0 60,611 19,517 81,640 1,61,768 66,710 55,855 2. 1990-91 57,116 13,614 63,568 1,34,298 41,022 69,782 3. 1991-92 3,24,475 1,10,691 4,21,914 8,57,080 92,000 6,45,782 4. 1992-93 3,58,355 1,61,983 2,80,890 8,01,228 4,69,100 2,37,023 5. 1993-94 2,55,692 1,00,825 13,3852 4,90,369 2,45,640 1,31,486 6. 1994-95 6,99,463 16,569 36,064 7,52,096 9,50,728 31,068 7. 1995-96 68,668 9,710 15,171 93,549 38,326 56,891 8. 1996-97 1,27,992 13,669 23,909 16,9570 1,02,754 55,803 9. 1997-98 37,339 (pg 93) 40,138 &nbs....
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....h his letter dated 29th November 2007. 13. That would still leave a sum of Rs. 50,674/- which also, Mr. Joshi claims, the original petitioner has already paid. Mr. Joshi states that original petitioner had paid an excess tax on self assessment. From the Statement-A made available by respondent no. 2 along with letter dated 29th November 2007, it is clear that the tax payable was only Rs. 19,52,372/- whereas the total tax paid was Rs. 20,06,280/- which would leave excess amount of Rs. 53,098/- as paid. In paragraph 7.3 of the said affidavit of Gurbinder Singh, it is not denied that there was an excess tax paid of Rs. 53,098/- but the stand of respondent no. 2 is that credit for such excess tax paid has already been granted to original petitioner but no interest was payable on the same as the excess tax paid is arising out of self-assessment tax paid by original petitioner which is not eligible for any interest. A Division Bench of this court in Stock Holding Corporation of India Ltd Vs. N. C. Tewari & Ors. 2014 SCC Online Bom 1762 has held that tax paid on self-assessment would fall under Section 244A(1) (b) of the Act, i.e., residuary clause covering refunds of amount not fallin....
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.... supplied) The inferences to be drawn from the Board's circular is clear that if refund is out of any tax other than out of advance tax or tax deducted at source, interest shall be payable from the date of payment of tax and ending on the date of the grant of refund. It is to be noted that nowhere does the CBDT even remotely suggest that interest is not payable by the Department on self-assessment tax. Moreover, the amount paid under Section 140A of the Act on self-assessment is an amount payable as and by way of the tax after noticing that there is likely to be shortfall in the taxes already paid. Thus this payment is considered to be a tax under the aforesaid provision. 8. The contention of revenue is that no interest at all is payable to the petitioner under Section 244A(1)(a) and (b) of the Act unless the amounts have been paid as tax. It would not cover cases where the payment is gratuitous as is evident from the fact that the petitioner in its computation after paying tax on self-assessment of Rs. 2.60 crores seeks a refund of Rs.47 lacs. According to him it has to be refund of amounts paid as tax. We find that Section 244A(1) of the Act commences with t....