The Petitioner Claims That The Refund Was Not Made In Time, And Hence The Petitioner Is Entitled To Interest And Places Reliance On Sandvik Asia Limited v. Commissioner Of Income Tax-I, Pune And Others In [(2006) 2 Scc 508] , Where The Default In Payment Of Interest Due In Refund Applications Was Declared To Be The

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 26TH DAY OF AUGUST 2014/4TH BHADRA, 1936 WP(C).No. 8150 of 2014 (P) --------------------------- PETITIONER : ----------------- MERCY JOY, AGED 67 YEARS, W/O.JOY, ASHIJANA HOUSE, NECHOOR P.O. ERNAKULAM DISTRICT, PIN-686664. BY ADV. SRI.PAUL K.VARGHESE RESPONDENTS : ---------------------- 1. THE DISTRICT COLLECTOR, KAKKANAD, CIVIL STATION, ERNAKULAM DISTRICT, PIN 682030. 2. THE REVENUE DIVISIONAL OFFICER, CIVIL STATION, MUVATTUPUZHA, MUDAVOOR P.O. PIN 686661. PIN 686661. 3. THE INCOME TAX OFFICER,WARD NO.1, INCOME TAX OFFICE, THODUPUZHA-685584. INCOME TAX OFFICE, THODUPUZHA-685584. 4. THE COMMISSIONER OF INCOME TAX KOCHI-682018. R1 & R2 BY GOVERNMENT PLEADER SMT. SOBHA ANNAMMA EAPEN R3 & R4 BY ADV. SRI.JOSE JOSEPH, SC, THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8150 of 2014 (P) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1:A TRUE COPY OF THE ORDER IN LAC NO. 79/06 OF THE REVENUE DIVISIONAL OFFICER MUVATTUPUZHA DATED 23-2-2007.DIVISIONAL OFFICER MUVATTUPUZHA DATED 23-2-2007. EXHIBIT P2: A TRUE COPY OF THE INCOME TAX STATEMENT MAINTAINED BY THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA DATED NIL. REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA DATED NIL. EXHIBIT P3:A TRUE COPY OF THE LETTER NO. S32 28897/12 OF THE DISTRICT COLLECTOR ERNAKULAM DATED 8-11-2012.COLLECTOR ERNAKULAM DATED 8-11-2012. EXHIBIT P4: A TRUE COPY OF THE LETTER DATED 13-8-12 ISSUED THE REVENUE DIVISIONAL OFFICER MUVATTUPUZHA. DIVISIONAL OFFICER MUVATTUPUZHA. EXHIBIT P5: A TRUE COPY OF JUDGMENT IN WPC 10478/2013 OF THE HONOURABLE HIGH COURT OF KERALA DATED 22-5-2013. HONOURABLE HIGH COURT OF KERALA DATED 22-5-2013. EXHIBIT P6: A TRUE COPY OF THE JUDGMENT IN CC NO. 1346/13 IN WPC NO. 10478/13 OF THE HONOURABLE HIGH COURT OF KERALA DATED 8-1-14. NO. 10478/13 OF THE HONOURABLE HIGH COURT OF KERALA DATED 8-1-14. EXHIBIT P7:COPY OF THE APPLICATION FILED BY THE PETITIONER'S HUSBAND BEFORE R4 DT 16/1/2014.BEFORE R4 DT 16/1/2014. RESPONDENT(S)' EXHIBITS: EXT. R3 (A):COPY OF THE CBDT'S INSTRUCTION NO. 13/2006 DT 22/12/2006. //TRUE COPY// P.A. TO JUDGE K. VINOD CHANDRAN, J. ===================== W.P.(C) No. 8150 of 2014 - P======================Dated this the 26[th] day of August, 2014 J U D G M E N T The petitioner claims interest, for the alleged delay, inrefund being made, of the amounts deducted as tax atsource, from the compensation payable to the petitioner.Admittedly, the petitioner's land was acquired by therespondent State in the year 2007 and there was alsoprotest lodged insofar as the award and eventually, the SubCourt having passed award; the payments were made afterdeducting tax at source. 2. The petitioner claims that the refund was not madein time, and hence the petitioner is entitled to interest andplaces reliance onSandvik Asia Limited v.Commissioner of Income Tax-I, Pune and others in[(2006) 2 SCC 508], where the default in payment ofinterest due in refund applications was declared to be the W.P.(C) No. 8150 of 2014 - P responsibility and personal liability of the income taxofficers. Hence, what is pertinent in this case would be toexamine, as to whether there is any default caused on thepart of the income tax authority. 2. The petitioner claims that the refund was not madein time, and hence the petitioner is entitled to interest andplaces reliance onSandvik Asia Limited v.Commissioner of Income Tax-I, Pune and others in[(2006) 2 SCC 508], where the default in payment ofinterest due in refund applications was declared to be the W.P.(C) No. 8150 of 2014 - P responsibility and personal liability of the income taxofficers. Hence, what is pertinent in this case would be toexamine, as to whether there is any default caused on thepart of the income tax authority. 3. As per the statement filed by the department, theassessee filed a return of income for the assessment year2007-08; belatedly on 31.07.2009 along with a copy of theTDS certificate, under Section 203 issued by the RevenueDivisional Officer, Moovattupuzha, dated 23.02.2007. Thesaid return was delayed for two years, since the Income TaxAct, 1961(3) mandates an individual assesses return to befiled on or before the 31[st] July of the assessment year.Hence, a return ought to have been filed on or before31.07.2007. Here it was filed belatedly with a delay of twoyears. 4. The delay however, was condoned by theCommissioner, under Instruction No. 13 of 2006 producedas Ext. R3(A), which Instruction has been issued underSection 119(2)(b) of the Income Tax Act. The Instructions W.P.(C) No. 8150 of 2014 - P issued by the Central Board of Direct Taxes conferring theCommissioner with the power to condone delay, alsospecifically notices that no interest will be admissible on thebelated refund of taxes. The said specification, is anadoption of sub-section (2) of Section 244A, wherein,interest is specifically declined if the delay is attributable tothe assessee. 5. Sandvik Asia Limited (supra) was a case in which despite ordering refund; the department merely refundedthe tax component and delayed the interest due under theAct; for 12 to 17 years. That was a case in which the Courtfound that the interest payable under the Act waswrongfully withheld by the department for a very longperiod. It was only in that context that the Hon'bleSupreme Court found the assessee to be entitled tocompensation by way of interest, on the interest not paid intime and wrongfully withheld. The said proposition hasabsolutely no application to the facts of the present case. 6. The learned Counsel for the petitioner points out W.P.(C) No. 8150 of 2014 - P the reply affidavit asserts that the TDS certificate wasissued only on 05.12.2013, after the judgment in W.P.(C)No.10478 of 2013. It is to be specifically noticed that, thesaid judgment, produced at Ext.P5, does not direct anyissuance of the TDS certificate. It cannot hence be assumedthat, the TDS certificate was not issued in time. If it werenot, definitely the petitioner would have sought for a prayerfor issuance of the TDS certificate, by the authority, whodeducted tax from source. If the delay was caused byreason of the delay in issuance of TDS certificate, then it isnot the Income Tax Department; who is responsible for thedelay in refund. 7. The specific averment made by the Income Taxdepartment is that, the return was filed belatedly on31.07.2009. The refund definitely has to be claimed withthe return and the same is stated to be filed belatedly on31.07.2009 along with the TDS certificate dated23.02.2007. This is the return, which was eventuallyconsidered and refund granted. This Court cannot W.P.(C) No. 8150 of 2014 - P countenance the contentions raised in the reply affidavitthat the TDS certificate was issued on 05.12.2013 and therefund claim was made first in 16.01.2014. 7. The specific averment made by the Income Taxdepartment is that, the return was filed belatedly on31.07.2009. The refund definitely has to be claimed withthe return and the same is stated to be filed belatedly on31.07.2009 along with the TDS certificate dated23.02.2007. This is the return, which was eventuallyconsidered and refund granted. This Court cannot W.P.(C) No. 8150 of 2014 - P countenance the contentions raised in the reply affidavitthat the TDS certificate was issued on 05.12.2013 and therefund claim was made first in 16.01.2014. 8. If as submitted by the petitioner, the return and therefund claim was made on 16.01.2014, definitely, the refundwould not have been considered, since Instruction No.13 of2006, confers power on the Commissioner to condone delay;only when the returns are filed with a delay of less than sixyears. It is also to be noticed that the refund is said to havebeen granted on 10.09.2013 even before the date of claimasserted by the petitioner, in the reply affidavit. The Writ Petition is found to be devoid of merit and thesame is dismissed. The parties are left to suffer theirrespective costs. Sd/- K. VINOD CHANDRAN,JUDGE SB // True Copy //P.A To Judge.