Mrs. C.P. Gilbert vs Union Of India & Ors.
1991 Latest Caselaw 217 Del

JUDGMENT

Ms. Sunanda Bhandare, J.

1. This is a petition under Art. 226 of the Constitution of India filed by the petitioner seeking interest on refund amount of Rs. 5,000 from 23rd November, 1975 to 2nd July, 1984. The brief facts of the case are as follows.

2. The petitioner was a proprietor of a firm known as Modern Construction company, filed a return of income on 1st January, 1971 declaring a loss of Rs. 13,555. The ITO, District VII (1) did not accept the return and enhanced the figure to Rs. 42,500 vide order dt. 15th March, 1973. The petitioner preferred an appeal before the AAC who confirmed the action of the ITO. Thereafter, the appellant filed an appeal before the Tribunal and by order dt. 23rd August, 1975 the Tribunal allowed the appeal for statistical reasons and remanded back the case to the ITO for reassessment as per the principles laid down in the said order. Thereafter, the ITO reassessed the income vide his order dt. 19th March, 1980 and assessed the income of the petitioner at Rs. 23,400. Being aggrieved by this order of the ITO, the petitioner again filed an appeal before the AAC. The AAC vide order dt. 5th November, 1981 accepted the appeal. As a consequence of the decision of the AAC, the petitioner became entitled to refund of Rs. 5,000. The Department through a process server sent the refund amount to the petitioner on 2nd February, 1982. However, the refund amount could not be served on the petitioner because the petitioner was not available at the address at which the refund amount was sent. The petitioner thereafter through her advocate vide letter dt. 11th August, 1986 wrote to the Income-tax authorities asking for a fresh refund voucher. Accordingly, the IT Department issued a fresh refund voucher on 1st September, 1986.

3. It is submitted by the learned counsel for the petitioner that the petitioner vide letter dt. 27th January, 1982 intimated to the respondent ITO that the address of the petitioner had changed and, therefore, it was incumbent upon the respondent to send refund voucher at the changed address. It is further submitted that the petitioner is in any event entitled to interest on the refund amount from 23rd August, 1975 under s. 244 of the IT Act.

4. A counter affidavit has been filed by the respondent wherein it is stated that the refund amount was sent admittedly after the final order was passed by the Assistant Commissioner giving relief to the petitioner on 5th November, 1981 and the circumstances for not giving the refund till 1986, have been explained in the said counter affidavit. It is affirmed that because of the non-availability of the petitioner the refund voucher through was prepared in 1982 itself and sent to the petitioner it could not be served on the petitioner.

5. In our view, the petitioner is not entitled to interest on the refund amount from 23rd August, 1975. The Tribunal by order dt. 23rd August, 1975 had not adjudicated on the amount but had remanded the matter back to the ITO for reassessment. The final order came to be passed only on 5th November, 1981. Thus, the petitioner became entitled to refund only on 5th Nov., 1981. In the circumstances, the petitioner would be entitled to interest, if any, under s. 244 of the IT Act only from 5th November, 1981 if the refund was not paid before the time specified in the said section. Now it is not disputed that the petitioner could not get the refund in 1982 because the petitioner was not available at the given address. In fact, the petitioner does not dispute that a refund voucher was sent on 2nd February, 1982. However, it is stated that the petitioner had intimated the changed address. We find it difficult to accept this contention. The petitioner has not placed any such letter on record. On the contrary, in the letter written by the petitioner through her advocate dt. 11th August, 1986 it is admitted by the petitioner that she had received the second refund voucher sent by the petitioner in 1984 but it could not be encashed because the validity period had expired. Even in this letter the petitioner has not specifically stated that she had intimated the change of address to the department as early as in January, 1982. In any event, the disputed question whether the change of address was intimated to the department in 1982 or not cannot be decided by us in these proceedings under Art. 226 of the Constitution of India. Moreover, since we are of the view that the petitioner became entitled to refund after the final order was passed on 5th November, 1981, interest under s. 244 of the IT Act on the said refund would be payable only if there was delay in sending the refund amount after the final order was passed in 1981. The claim for interest on refund amount from 23rd August, 1975 to 2nd July, 1984 is thus thoroughly unjustified.

6. In the circumstances, we find no merit in the writ petition and the same is dismissed. Parties will bear their own costs.