TaxTMI 
TaxTMI 
TaxTMI 
2023 (7) TMI 349
X X X X Extracts X X X X
X X X X Extracts X X X X
....ore 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 petitioner was required to pay the additional amoun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itted 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 The only issue remains in the petition, petitioner having withdrawn the constitutional challenge to Section 245HA and 245D (2D), is whether original petitioner had paid the amounts of tax and interest on or before 31st July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 1,47,970 57,116 13,614 63,568 1,34,298 3. 1991-92 6,24,220 3,24,475 1,10,691 4,21,914 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 10. 1998-99 (Appeal effect) 3,297 (parag raph 4 and 7.5 of Reply) 1,153 (paragr aph 4 and 7.5 of Reply) 11. 1999- 2000 8,384 (pg 97) 4,736 12. 2000- 2001 3,754 (pg 100) 1,709 13 2003- 2004 18,701 (pg 92) 2,992 (paragraph 5 and 7.5 of Reply) Total 19,52,372 4,46,578 10,57,008 34,55,958 20,06,280 12,83,690 49,477 46,583 21,998 4,145 Upto column 9 the total of figures are avai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cess 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 falling under Section 244A(1) of the Act and as confirmed by a circular issued by the CBDT referred to in the judgment, the said payment should be considered to be a tax and interest thereon would be payable to the assessee. Paragraph nos. 7 and 8 of Stock Holding Corporation (Supra) read as under: "7. We have considered the rival submissions. On a bare analysis of Section 244A(1) of the Act it is clear that amount paid by the petitioner as tax on self assessment would not stand covered by Section 244A(1)(a) of the Act. This is so as it is neither the payment of tax by way of advance tax or by way of tax deducted at source. Thus tax paid on self assessment would fall under Section 244A(1)(b) of the Act, i.e. a residuary clause covering refunds of amount not falling under Section 244A(1) of the Act. T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 the word "when refund of any amount becomes due to the assessee under this Act...". Subclause (b) thereof commences with the words "in any other case....". The words used in Section 244A(1) of the Act are clear inasmuch as it provides that refund of any amount that become due to any assessee under the Act will entitle the assessee to interest. In any case in the present facts, the amount on which the refund is being claimed was originally paid as tax on self-assessment under Section 140A of the Act and evidence of the same in the form of challan was enclosed to the Return of Income. In fact when the Assessing Officer passed the Assessment Order on 31 December 1996, he accepted the entire amount paid as tax on self-assessment as a payment of tax. One more feature to be noticed is that when any refund becomes due to an assessee out of tax paid,....