The Bombay Dyeing & Manufacturing Co. Ltd.a Company Incorporated Under The Companiesact, 1886 And v. H.d. Trivedi, Deputy Commissionerof Income Tax, Central Circle

Digitallysigned byTRUSHATRUSHATUSHARTUSHARMOHITEMOHITEDate:2023.07.1411:16:36+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2537 OF 1999 The Bombay Dyeing & Manufacturing Co. Ltd.a company incorporated under the CompaniesAct, 1886 and having its Registered Officeat Neville House, Ballard Estate, Bombay 400 001 ….. Petitioner Vs. 1. H.D. Trivedi, Deputy Commissionerof Income Tax, Central Circle 8,having his office at Old C.G.O.Annexe Building, Maharsi Karve Road,Bombay 400 020. 2. H.C.Parekh, Commissioner ofIncome Tax, Central-1, Bombayhaving his office at old C.G.O.Annexe Building, Maharshi Karve Road,Bombay 400 020. 3. Union of India ….. Respondents Mr.Madhur Agrawal i/b Mr.Atul K. Jasani for the Petitioner Mr.Suresh Kumar for the Respondents CORAM:K.R. SHRIRAM, J &FIRDOSH P. POONIWALLA, J. RESERVED ON:23[rd] JUNE 2023 PRONOUNCED ON: 14[th] JULY 2023 JUDGMENT (PER FIRDOSH P. POONIWALLA, J): 1.The present Writ Petition challenges the legality and validity of the orders passed by Respondent no.2 determining theamount of tax payable by the Petitioner pursuant to a declarationfiled under the Kar Vivadh Samadhan Scheme, 1998 (“KVSS”)introduced by Finance (No.2) Act, 1998 (“Finance Act”). Inparticular, the Petitioner has challenged the Certificate dated25.02.1999 issued by Respondent no.2 in terms of sub-section (1) ofSection 90 of the Finance Act, Order dated 17.03.1999 passed byRespondent no.2 rejecting the Petitioner’s Rectification Applicationand a Certificate dated 02.08.1999 issued by Respondent no.2 underSection 90(2), read with Section 91, of the Finance Act. 2.The Petitioner is a public limited company which carrieson the business interalia of manufacture and sale of textiles. ThePetitioner had filed a Writ Petition in this Court, being Writ PetitionNo.2007 of 1991, wherein it had challenged interalia the validity ofSection 115J of the Income Tax Act, 1961 (“the Act”), the validity ofCBDT Circular No.495 dated 22.09.1987 and the manner in whichRespondents ought to apply the said Section in the matter ofworking out the set off of brought forward depreciation andinvestment allowance. In the said Writ Petition, Rule was issued bythis Court on 26.06.1991. While issuing Rule, this Court passed aninterim order whereunder the Petitioner was permitted to payadvance tax or self assessment tax and/or file its return of income in accordance with the third interpretation given in the said WritPetition to the provisions of Section 115J of the Act. Further, theRespondents were permitted to proceed with the assessment butcould not serve any notice of demand on the Petitioner pendingfurther orders in the said Writ Petition. Interest under Sections234A. 234B and 234C of the Act as well as additional tax undersection 143(1A) of the Act were to be paid in accordance with thethird interpretation set out in the Petition. The Petitioner was alsoto furnish a bank guarantee of a nationalised bank for 50% ofdifferential tax less advance tax and tax deducted at source forAssessment Year 1991-92 on the basis of the difference between theinterpretation of Section 115J as per the said Circular No.495 dated22.09.1987 issued by the Central Board of Direct Taxes and thethird interpretation, which bank guarantee was to be furnishedwithin three months from the date of the determination and whichwas so furnished. 3.On 20.12.1991, the Petitioner filed its Return of Incomefor Assessment Year 1991-92. The Petitioner returned a nil incomeand on account of the Advance Tax of Rs.4,51,50,000/- paid and thetax deducted at source of Rs.1,01,74,620/- the Petitioner claimed arefund of Rs.5,53,24,620/- in the Return as filed on 20.12.1991. 3.On 20.12.1991, the Petitioner filed its Return of Incomefor Assessment Year 1991-92. The Petitioner returned a nil incomeand on account of the Advance Tax of Rs.4,51,50,000/- paid and thetax deducted at source of Rs.1,01,74,620/- the Petitioner claimed arefund of Rs.5,53,24,620/- in the Return as filed on 20.12.1991. 4.Respondent no.1 processed the Return filed on20.12.1991 and made an intimation under section 143(1)(a).Respondent no.1, by his letter dated 11.06.1992, intimated to thePetitioner that the total tax, including interest under section 234Bwas determined at Rs.19,23,82,029/- and after allowing for credit ofadvance tax and tax deducted at source aggregating toRs.5,47,97,545/- a sum of Rs.13,75,84,484/- was payable andaccordingly, a demand was raised. The Petitioner was called upon tofurnish a bank guarantee for a sum of Rs.6,87,92,242/- being 50% ofthe said demand. 5.The Petitioner, by its letter dated 27.11.1992, applied forrectification of certain errors. The said application was disposed byan Order dated 31.12.1992 made under section 154 of the Act.Respondent no.1 determined the total income at Rs.6,51,19,488/-and the tax payable thereon at Rs.3,59,45,957/-. After giving creditfor advance tax of Rs.4,51,50,000/- and tax deducted at source ofRs.96,47,545/-, aggregating to Rs.5,47,97,545/-, a refund ofRs.1,88,51,588/- was determined. Respondent no.1 also grantedinterest to the Petitioner under Section 244A of the Act of a sum ofRs.45,24,384/- and accordingly determined the total sum refundableat Rs.2,33,75,972/-. This refund was adjusted against a demand forthe Assessment Year 1990-91. 6.Being aggrieved by the said Order dated 31.12.1992, thePetitioner filed an Appeal to the Commissioner of Income tax(Appeals). The Petitioner also filed an application for rectification byits letter dated 24.05.1993. 7.Respondent no.1, by an Order dated 15.07.1993,rectified his earlier order and granted an additional credit for taxdeducted at source of Rs.5,24,909/- as well as recomputed theinterest allowable under section 244A. Accordingly a further refundof Rs.16,30,205/- was worked out and the same was received by thePetitioner. 8.The Petitioner’s Appeal challenging the said Order dated31.12.1992 was allowed by the Commissioner of Income Tax(Appeals) by his Order dated 02.09.1993. On further Appeal by theRevenue to the ITAT, by an Order dated 22.12.1997, the ITATrestored the matter to the file of the Commissioner of Income Tax(Appeals) with a direction that the Appeal be disposed de novo. 9.By a letter dated 31.03.1994, Respondent no.1 intimatedto the Petitioner that its assessment for the Assessment Year 1991-1992 had been completed under Section 143(3) of the Act and thetotal income was determined at Rs.29,04,54,928/-. 10.Respondent no.1, thereafter, by his letter dated16.11.1994 addressed to the Petitioner, worked out the tax payableon a provisional basis at Rs.11,60,82,920/- and called upon thePetitioner to furnish a bank guarantee of 50% thereof viz.,Rs.5,80,41,460/- within ten days of the receipt of the said letter. 11.Thereafter, pursuant to reopening of the Petitioner’sassessment under Section 148 of the Act, the total income of thePetitioner was revised to Rs.31,96,52,478/- and a demand ofRs.17,84,62,709/- was raised. 9.By a letter dated 31.03.1994, Respondent no.1 intimatedto the Petitioner that its assessment for the Assessment Year 1991-1992 had been completed under Section 143(3) of the Act and thetotal income was determined at Rs.29,04,54,928/-. 10.Respondent no.1, thereafter, by his letter dated16.11.1994 addressed to the Petitioner, worked out the tax payableon a provisional basis at Rs.11,60,82,920/- and called upon thePetitioner to furnish a bank guarantee of 50% thereof viz.,Rs.5,80,41,460/- within ten days of the receipt of the said letter. 11.Thereafter, pursuant to reopening of the Petitioner’sassessment under Section 148 of the Act, the total income of thePetitioner was revised to Rs.31,96,52,478/- and a demand ofRs.17,84,62,709/- was raised. 12.The Petitioner decided to take advantage of the KVSS toput an end to the disputes. Therefore, by its letter dated 30.12.1998addressed to Respondent no.2, Petitioner forwarded a declarationunder the KVSS for the Assessment Year 1991-92. The tax arrearsoutstanding as on 31.03.1998 for the Assessment Year 1991-92were computed at Rs.17,84,62,709/- consisting of tax demand ofRs.9,17,17,686/-, interest of Rs.6,17,38,846/- and another sum ofRs.2,50,06,177/- which was the refund inclusive of interest grantedunder section 244A and which was received pursuant to theintimation made. The disputed income was computed atRs.19,93,86,274/- on which the tax liability under the KVSS wasdetermined at Rs.6,97,85,196/-. The computation of tax liability under the KVSS, as done by the Petitioner, is as under: 13.Respondent no.2 issued as per the KVSS, a Certificatedated 25.02.1999 under sub-section (1) of Section 90 of the FinanceAct and determined the tax arrears at Rs.17,84,62,709/- inagreement with the Petitioner’s determination. However,Respondent no.2 computed the tax payable under KVSS atRs.8,88,11,635/-. The Petitioner was called upon to make paymentof the said sum of Rs.8,88,11,635/- within a period of thirty daysfrom the date of the said Certificate. Whilst determining thedisputed tax, Respondent no.2 determined the tax paid atMohite 7/19 Rs.3,03,16,277/- as against the Petitioner’s claim that the total taxpaid was Rs.5,53,22,454/-. According to Respondent no.2, from theadvance tax paid and tax deducted at source aggregating toRs.5,53,22,454/-, the refund of Rs.2,50,06,177/- granted pursuantto the intimation under section 143(1)(a) had to be reduced. Thecalculation made by Respondent no.2 is as under: KAR VIVAD SAMADHAN SCHEME, 1998 A)Assessed incomeB)Assessed tax thereon (including S.C.)C)Taxes paid:TDS & advance taxRs.5,53,22,454B)Assessed tax thereon (including S.C.)C)Taxes paid:TDS & advance taxRs.5,53,22,454 Less: R.O.issued as per 143 (1)(a)Rs.2,50,06,177per 143 (1)(a)Rs.2,50,06,177 ------------------------ Rs.31,96,52,478Rs.14,70,40,140 Rs. 3,03,16,277 Tax arrears (disputed tax)When tax is Rs.14,70,40,140/- income is When tax is Rs. 3,03,16,277/- income is Disputed income Rs.11,67,23,863Rs.31,96,52,478Rs. 6,59,04,950Rs.25,37,47,528 Hence amount payable under KVSS 1998@ 35% of disputed income Rs. 8,88,11,635 14.The Petitioner, by its letter dated 03.03.1999 addressedto Respondent no.2, pointed out that the difference between thedisputed income and the tax payable pursuant to the declarationunder KVSS as determined by Respondent no.2, and as per thedeclaration filed, arose on account of the fact that from the advancetax paid and tax deducted at source aggregating to Rs.5,53,22,454/- Less: R.O.issued as per 143 (1)(a)Rs.2,50,06,177per 143 (1)(a)Rs.2,50,06,177 ------------------------ Rs.31,96,52,478Rs.14,70,40,140 Rs. 3,03,16,277 Tax arrears (disputed tax)When tax is Rs.14,70,40,140/- income is When tax is Rs. 3,03,16,277/- income is Disputed income Rs.11,67,23,863Rs.31,96,52,478Rs. 6,59,04,950Rs.25,37,47,528 Hence amount payable under KVSS 1998@ 35% of disputed income Rs. 8,88,11,635 14.The Petitioner, by its letter dated 03.03.1999 addressedto Respondent no.2, pointed out that the difference between thedisputed income and the tax payable pursuant to the declarationunder KVSS as determined by Respondent no.2, and as per thedeclaration filed, arose on account of the fact that from the advancetax paid and tax deducted at source aggregating to Rs.5,53,22,454/- Respondent no.1 had deducted the refund granted to the Petitionerof Rs.2,50,06,177/-. It was further submitted that assuming suchrefund was to be deducted, the interest granted under section 244Aof the Act of Rs.56,29,680/- which formed a part of the said refund,could in no event have been reduced. The Petitioner furthersubmitted that the adjustment so made was not in accordance withthe provisions of the KVSS and that Respondent no.2 was requiredto amend his Certificate and issue a fresh certificate. 15.Respondent no.2, by his Order dated 17.03.1999,rejected the Petitioner’s rectification application. According toRespondent no.2, the refund of Rs.2,50,06,177/- granted pursuantto the intimation made was to be deducted from the tax paid forarriving at the amount of net payment of tax, and as the adjustmentwas in accordance with the KVSS, there was no merit in therectification application. 16.It is the case of the Petitioner that, as the last date ofpayment of tax was 27.03.1999, the Petitioner had no option but tomake the payment, and, accordingly, the Petitioner paid a sum ofRs.8,88,11,635/- on 24.03.1999. 17.The Petitioner, by its letter dated 30.03.1999 addressedto Respondent no.2, pointed out that the Petitioner had, without prejudice to its rights and contentions, paid the amount ofRs.8,88,11,635/- on 24.03.1999 and furnished the proof of paymentof the said sum. Respondent no.2 was requested to issue aCertificate under section 90(2) of the Finance Act. 18.Further, in accordance with the provisions of section90(4) of the Finance Act, the Petitioner applied to this Court towithdraw Writ Petition No.2007 of 1991 and this Court, by its Orderdated 22.06.1999, permitted the withdrawal of the said Petition. 19.The Petitioner filed a copy of the said Order withRespondent no.2, who thereafter issued a Certificate dated02.08.1999 under Section 90(2), read with Section 91, of theFinance Act. 20. The present Writ Petition was filed on 17.09.1999. Onbehalf of the Respondents, Respondent no.2 filed an Affidavit dated12.11.1999 opposing the granting of any reliefs in the Petition. Byan Order dated 06.12.1999, this Court issued Rule on the Petition. 21.Although raised in the Writ Petition, Mr.Agrawal did notpress the submission that the amount of tax refund ofRs.1,93,76,497/- should not have been reduced to determine theamount of tax paid by the Petitioner. 19.The Petitioner filed a copy of the said Order withRespondent no.2, who thereafter issued a Certificate dated02.08.1999 under Section 90(2), read with Section 91, of theFinance Act. 20. The present Writ Petition was filed on 17.09.1999. Onbehalf of the Respondents, Respondent no.2 filed an Affidavit dated12.11.1999 opposing the granting of any reliefs in the Petition. Byan Order dated 06.12.1999, this Court issued Rule on the Petition. 21.Although raised in the Writ Petition, Mr.Agrawal did notpress the submission that the amount of tax refund ofRs.1,93,76,497/- should not have been reduced to determine theamount of tax paid by the Petitioner. 22.Mr.Agrawal, however, submitted that, even if it is heldthat the amount of tax refunded to the Petitioner is to be reducedwhile determining the amount of disputed tax, then, also, only theamount of Rs.193,76,497/-, being the tax refund, should be reducedand not the amount of interest under Section 244A ofRs.56,29,680/-. In this context, Mr.Agrawal submitted that, fromthe tax paid by the Petitioner of Rs.553,22,454/-, the tax which hadbeen refunded to the Petitioner is only Rs.193,76,497/- and as theRevenue had the benefit of the said sum of Rs.193,76,497/- from thedate of payment to the date of refund, interest on the said amount ofRs.56,29,680/- had been paid to the Petitioner under Section 244Aof the Act. He submitted that it is undisputed that what wasrefunded to the Petitioner by way of tax is only the amount ofRs.193,76,497/- and, therefore, in any view of the matter, it is onlythis amount which should be reduced to determine the amount oftax paid by the assessee and not the amount of interest. Mr.Agrawalfurther submitted that, if the amount of interest is also reducedwhile determining the amount of tax paid by the assessee, it maylead to absurdity. In this context, Mr.Agrawal gave an example that,if the assessee had paid tax of Rs.1,00,000/- and the whole amounthad been refunded to the assessee along with interest of Rs.15,000/-under section 244A of the Act, in such a case it may be held that the assessee has not paid any tax and therefore, the tax paid by theassessee would be ‘NIL’ as the whole of the tax paid of Rs.1,00,000/-had already been refunded to the assessee. However, if theargument of the Respondents is to be accepted, then the amount oftax paid by the assessee would be determined as negative, i.e. -Rs.15,000/- because according to the revenue, although the assesseehas paid tax of Rs.1,00,000/-, refund to the assessee has beengranted of Rs.1,15,000/- and therefore, tax paid by the assessee isnegative, i.e. - Rs.15,000/-. He submitted that it would be absurd tosay that the tax paid by the assessee is a negative amount as it is notpossible for an assessee to pay tax in the negative. 23. In these circumstances, Mr.Agrawal submitted that evenif one was to reduce the amount of refund granted to the assesseefrom the tax paid by an assessee, the said reduction should berestricted to the refund of tax and not refund of interest. 24.On the other hand, Mr.Suresh Kumar, the learnedCounsel for the Respondents, reiterated the contents of the Affidavitin Reply dated 12.11.1999 filed by Respondent no.2 and inparticular, the contents of sub-paragraphs (a), (b) and (c) ofparagraph 6 of the said Affidavit, which read as under:- (a)The "Disputed Tax" means the total taxdetermined and payable in respect of the 23. In these circumstances, Mr.Agrawal submitted that evenif one was to reduce the amount of refund granted to the assesseefrom the tax paid by an assessee, the said reduction should berestricted to the refund of tax and not refund of interest. 24.On the other hand, Mr.Suresh Kumar, the learnedCounsel for the Respondents, reiterated the contents of the Affidavitin Reply dated 12.11.1999 filed by Respondent no.2 and inparticular, the contents of sub-paragraphs (a), (b) and (c) ofparagraph 6 of the said Affidavit, which read as under:- (a)The "Disputed Tax" means the total taxdetermined and payable in respect of the assessment year but which remains unpaid as onthe date of declaration under Kar VivadSamadhan Scheme. It is true that in the case ofthe Petitioner the income assessed for the A.Y.1991-92 was of Rs.31,96,52,478/- and taxdeterminedonthesamewasofRs.14,70,40,140/-. The assessee had paidRs.5,53,22,454/- by way of advance tax and taxdeducted at source. The assessee was howeverissued refund of Rs.2,50,06,177/- which accruedto the assessee as a result of processing of theassessee's return u/s. 143(1)(a) of the Act. Thisrefund amount of Rs.2,50,06,177/- comprised ofRs.1,93,76,497/- being the amount of excessprepaid taxes and Rs.56,29,680/- being theamount of interest on this amount ofRs.1,93,76,497/-. Thus though the assessee hadpaid Rs.5,53,22,454/- by way of advance tax andtax deducted at source, an amount ofRs.2,50,06,177/- was refunded back to theassessee as per the intimation u/s. 143(1)(a) ofthe Act much prior in time to making of theassessment and thereby determining the assessedincome and the tax payable thereof. The tax paidin advance by the assessee was thereforeRs.3,03,16,277/-only (5,53,22454- 2,50,06,177).On the day of assessee's filing the declarationunder the Kar Vivad Samadhan Scheme the taxremaining unpaid i.e. the disputed tax wastherefore of Rs.11,67,23,863/- which is theresultant figure arrived at by deductingRs.3,03,16,277/- being the tax paid in advancefrom Rs.14,70,40,140/- being the amount ofassessed tax. As per the definition the "disputedtax" means the tax determined and payable butwhich remains unpaid. In view of the fact that inthis case an amount of Rs.2,50,06,177/- wasalready refunded back to the assessee(Rs.1,93,76,497/- being the amount of the excessprepaid taxes and Rs.56,29,680/- being theamount of interest on it) from the prepaid taxesof Rs.5,53,22,454/- obviously while calculatingthe tax remaining unpaid the deduction of theamount of Rs.3,03,16,277/- was given as the taxes already paid from the tax determined andpayable. (b)In this case the tax determined andpayable was of Rs.14,70,40,140/- and the on theday of declaration under Kar Vivad SamadhanScheme tax remaining unpaid was ofRs.11,67,23,863/- as already an amount ofRs.2,50,06,177/- was refunded back to theassessee. (c)It is obvious that while taking intoaccount the amount of the prepaid taxes, theamount of tax already refunded back (out of theprepaid taxes) to the assessee has to be deductedfrom the amount of the prepaid tax and this factwas intimated to the assessee while rejecting itsapplication for the rectification." 25.In our view, the submissions made on behalf of thePetitioner do not have any merit. Section 88(a)(i) of the Finance Act reads as under: (b)In this case the tax determined andpayable was of Rs.14,70,40,140/- and the on theday of declaration under Kar Vivad SamadhanScheme tax remaining unpaid was ofRs.11,67,23,863/- as already an amount ofRs.2,50,06,177/- was refunded back to theassessee. (c)It is obvious that while taking intoaccount the amount of the prepaid taxes, theamount of tax already refunded back (out of theprepaid taxes) to the assessee has to be deductedfrom the amount of the prepaid tax and this factwas intimated to the assessee while rejecting itsapplication for the rectification." 25.In our view, the submissions made on behalf of thePetitioner do not have any merit. Section 88(a)(i) of the Finance Act reads as under: 88:-Settlement of tax payable:-Subject to theprovisions of this Scheme, where any personmakes, on or after the 1[st] day of September, 1998,but on or before the 31[st] day of December, 1998, adeclaration to the designated authority inaccordance with the provisions of section 89 inrespect of tax arrear, then, notwithstandinganything contained in any direct tax enactmentor indirect tax enactment or any other provisionof any law for the time being in force, the amountpayable under this Scheme by the declarant shallbe determined at the rates specified hereunder,namely:- "(a)where the tax arrear is payable under theIncome-tax Act, 1961 (43 of 1961), - (i) in the case of a declarant, being a company or afirm, at the rate of thirty-five per cent of thedisputed income.” 26.Under the provisions of section 88(a)(i) of the FinanceAct, on the basis of the tax arrears / disputed tax, the disputedincome of the assessee has to be worked out, and, in order to claimbenefits under KVSS, the assessee, if it is a company or a firm, has topay taxes at the rate of thirty-five per cent of the disputed income soworked out. 27.Section 87(e) of the Finance Act defines disputed incomeas under:- 87(e)“disputed income”, in relationto an assessment year, means thewhole or so much of the total incomeas is relatable to the disputed tax.” 28.Section 87(f) of the Finance Act defines disputed tax as under: 87(f)“disputed tax” means the totaltax determined and payable, inrespect of an assessment year underany direct tax enactment but whichremains unpaid as on the date ofmaking the declaration under section88.”tax determined and payable, inrespect of an assessment year underany direct tax enactment but whichremains unpaid as on the date ofmaking the declaration under section88.” 29.On the basis of the said definitions of disputed tax anddisputed income, it is clear that, in order to arrive at the disputedtax, the total assessed tax for that particular year would have to be worked out, and, from the same, the taxes which may have beenpaid by the assessee have to be deducted. That disputed tax has tobe total tax determined and payable but which remains unpaid, asper the provisions of Section 88(f), ‘tax which remains unpaid’ as onthe date of making declaration. To calculate tax which remainsunpaid, it is obvious that, whilst deducting from the total assessedtax the tax already paid, effect would have to be given to any refundissued by the Revenue to the Assessee and to any interest paidthereon by the Revenue to the Assessee. If effect is not given to thesaid Refund and interest paid by the Revenue to the Assessee, thenthe figure of disputed tax which would be arrived at would not be taxwhich remained unpaid. worked out, and, from the same, the taxes which may have beenpaid by the assessee have to be deducted. That disputed tax has tobe total tax determined and payable but which remains unpaid, asper the provisions of Section 88(f), ‘tax which remains unpaid’ as onthe date of making declaration. To calculate tax which remainsunpaid, it is obvious that, whilst deducting from the total assessedtax the tax already paid, effect would have to be given to any refundissued by the Revenue to the Assessee and to any interest paidthereon by the Revenue to the Assessee. If effect is not given to thesaid Refund and interest paid by the Revenue to the Assessee, thenthe figure of disputed tax which would be arrived at would not be taxwhich remained unpaid. 30.It is true that income of the Petitioner assessed for A.Y.1991-92 was of Rs.31,96,52,478/- and the tax determined on thesame was of Rs.14,70,40,140/-. The Petitioner had paidRs.5,53,22,454/- by way of advance tax and tax deducted at source.The Petitioner was, however, issued refund of Rs.2,50,06,177/-which accrued to the Petitioner as a result of processing thePetitioner’s return under Section 143(1)(a) of the Act. This refundamount of Rs.2,50,06,177/- comprised of Rs.1,93,76,497/- being theamount of excess prepaid taxes and Rs.56,29,680/- being theamount of interest on this amount of Rs.1,93,76,497/-. Thus though the Petitioner had paid Rs.5,53,22,454/- by way of advance tax andTDS, an amount of Rs.2,50,06,177/- was refunded to the Petitioneras per the intimation under Section 143(1)(a) of the Act much priorin time to making of the assessment and thereby determining theassessed income and the tax payable thereon. The tax paid inadvance by the Petitioner was, therefore, Rs.3,03,16,277/- only(Rs.5,53,22,454/- - Rs.2,50,06,177/-). On the day of the Petitioner'sfilling the declaration under KVSS the tax remaining unpaid, i.e., thedisputed tax was, therefore, Rs. 11,67,23,863/- which is theresultant figure arrived at by deducting Rs.3,03,16,277/- being thetax paid in advance from Rs.14,70,40,140/- being the amount ofassessed tax. As per the definition, the disputed tax means the taxdetermined and payable but which remains unpaid. In view of thefact that in this case an amount of Rs.2,50,06,177/- was alreadyrefunded back to the Petitioner (Rs.1,93,76,497/- being the amountof the excess prepaid taxes and Rs.56,29,680/- being the amount ofinterest on it) from the prepaid taxes of Rs.5,53,22,454/- obviouslywhile calculating the tax remaining unpaid the deduction of theamount of Rs.3,03,16,277/- only has to be given as the taxes alreadypaid from the tax determined and payable. 31. In these circumstances, in our view, Respondent no.2,whilst calculating the disputed tax, has correctly taken the assessed tax at Rs.14,70,40,140/-, and deducted the tax paid by thePetitioner by way of advance tax and tax deducted at source ofRs.5,53,22,454/- after deducting therefrom a sum ofRs.2,50,06,177/- which had been paid to the Petitioner by way ofrefund and interest under section 143 (1)(a) of the Act. Afterdeducting the said sum of Rs.2,50,06,177/- from the tax paid ofRs.5,53,22,454/-, the Respondent no.2 has correctly arrived at thefigure of Rs.3,03,16,277/- as the amount of tax paid. After deductingthe said amount of Rs.3,03,16,277/- from the said sum ofRs.14,70,40,140/-, Respondent no.2 has correctly calculated thedisputed tax as Rs.11,67,23,863/- and, on the basis of the said sum,has correctly worked out the amount payable by the Petitionerunder the KVSS as Rs.8,88,11,635/-. In our view, the saidcalculation made by Respondent no.2 is in consonance with theprovisions of the Finance Act and cannot be faulted. 32.Further, while considering this argument of thePetitioner, it is important to keep in mind the fact that the Revenuerefunded tax to the Petitioner, and paid interest thereon, becausethe Petitioner had not disclosed and calculated tax properly. Thisbeing the situation, the Petitioner cannot take advantage of its ownwrong and claim that the interest which has been paid to it shouldnot be reduced while computing the disputed tax. We are not inclined to entertain such an argument at all, and, in any case,definitely not whilst exercising our Writ Jurisdiction. 33.For all the aforesaid reasons, the Writ Petition is herebydismissed and the Rule issued by this Court is discharged. 34.There shall be no order as to costs. (FIRDOSH P.POONIWALLA, J.) (K.R. SHRIRAM, J.)