Tax Siliguri vs Prakasho Devi Saria
2023 Latest Caselaw 2961 Cal/2

OD 7

                         IN THE HIGH COURT AT CALCUTTA
                        SPECIAL JURISDICTION (INCOME TAX)
                                  ORIGINAL SIDE

                                RVWO/44/2023
                         IA NO: GA/1/2023, GA/2/2023
                     PRINCIPAL COMMISSIONER OF INCOME
                                 TAX SILIGURI
                                      VS
                             PRAKASHO DEVI SARIA




BEFORE :
THE HON'BLE THE CHIEF JUSTICE T.S. SIVAGNANAM
             And
THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
Date : 13TH OCTOBER, 2023

                                                                           Appearance :
                                                         Mr. Soumen Bhattacharjee, Adv.
                                                                         ....for appellant
                                                              Ms. Radhika Agarwal, Adv.
                                                                        ...for respondent

The Court : - There is a delay of 76 days in filing the review application.

On perusal of the averments of the condone delay petition, we find

sufficient cause has been shown. Hence, the delay in filing the review application

is condoned.

The review application has been filed by the revenue to review the order

passed in WPO/19/2023 dated 17.5.2023 which review application was filed by

the respondent assessee. The court did not accede to the prayer to review the

judgment at the instance of the assessee, but, however, taking note of the

submissions made that the order of the tribunal has been given effect to and

review was granted to the assessee and observation was made that the amount

refunded shall not be recovered by the department on account of the judgment

dated 14.6.2022. The department is on review by contending that after the

judgment of this court in the batch of cases, the assessee has paid a sum of

Rs.48,20,810/-. The assessee now takes advantage of the observations made in

the order dated 17.5.2023 and has claimed for refund of the said amount. The

question would be as to under what circumstances the direction was issued not

to recover the amount from the assessee. This, in our view, was on account of

the submissions that the order passed by the tribunal was given effect to. The

contention of the learned standing counsel is that on and after the order passed

by the tribunal, the department was heard to give effect of the same and after

the judgment was passed by this court it was the duty of the assessee to pay the

tax which has been complied with by the assessee. Thus, the question, which

falls for consideration, is whether on the strength of the observation made in the

order dated 17.5.2023 the respondent assessee can claim refund. This issue will

be decided after the respondent assessee files their affidavit in opposition, for

which six weeks time is granted; reply thereto, if any, within two weeks

thereafter.

Till the matter is heard and decided the amount paid by the assessee

cannot be refunded.

The application for condonation of delay being GA/1/2023 stands closed.

(T.S. SIVAGNANAM) CHIEF JUSTICE

(HIRANMAY BHATTACHARYYA, J.) Pkd/GH.