GOPAL RAMNARYAN R Vs. THIRD INCOME TAX OFFICER

JUDGEMENT

(1.) THESE two writ petitioners are disposed of by the following common order inasmuch as the petitioner is one and the same as well as the questions of fact and questions of law are common to both.

(2.) THE petitioner was a partner in a firm known as "Ramco Swadeshi" having 31 per cent. interest in the firm. For the assessment year 1973-74, pursuant to an order passed under s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") the petitioner paid a sum of Rs. 94,179 as advance tax and also a further sum of Rs. 4,883.89 had been deducted as tax at source under the Act. THE petitioner also paid for that assessment year a sum of Rs. 2,367 on self-assessment when he filed his return before any assessment order was passed by the respondent-IIIrd ITO, II Circle, Bangalore. Thus, the total tax paid by the assessee-petitioner for the relevant assessment year was Rs. 1,01,420.89. Similarly, for the assessment year 1975-76, in W.P. No. 1289/1980, he had paid advance tax of Rs. 51,966 and tax deducted at source amounted to Rs. 5,580.75. He paid the tax on self-assessment in the sum of Rs. 11,850 making up the total sum of Rs. 69,396.75 before any assessment order was passed for that assessment year. THE assessment orders came to be passed, namely, in respect of the assessment year 1973-74 on October 1, 1975, and in respect of the assessment year 1975-76 on August 20, 1976. Aggrieved by certain legal infirmities in the assessment orders, the assessee-petitioner filed two appeals before the AAC which came to be dismissed. Against those orders, he preferred statutory second appeal before the Income-tax Appellate Tribunal, Bangalore Bench, Bangalore, relating to the assessment years 1973-74 and 1975-76 in Appeals Nos. ITA 586 and 588/1977-78. THE above two appeals and another appeal filed by the assessee-petitioner concerning the assessment year 1974-75 (with which we are not concerned in these writ petitions) and the Income-tax Appeals Nos. 578 and 598 filed by the respondent-ITO were clubbed together and disposed of by a common order. Several contentions were raised before the Tribunal for and on behalf of the assessee-petitioner and we are concerned only with the contention which was upheld by the Tribunal. That contention was that the assessment orders in question were bad in law because the respondent-ITO had not quantified the tax in the assessment order as required under s. 143(3) of the Act. As a matter of fact the Appellate Tribunal found that while the respondent-ITO had signed the assessment order, he had quantified the tax due in a separate sheet annexed to the assessment order. In the result, the Tribunal agreeing with the contention raised for and on behalf of the assessee-petitioner, annulled the assessment orders and the matter rested there. THEreafter, the petitioner not hearing from the respondent in regard to refund of tax paid by him for the two relevant assessment years, made a demand for the refund. In response to the said demand, the respondent in his letter dated October 29, 1979, rejected the demand. Aggrieved by such rejection, the assessee-petitioner has moved this court under art. 226 of the Constitution praying for an appropriate direction to the respondent to refund the tax paid by the assessee-petitioner for the relevant assessment years, inter alia, contending that there being no assessment order validly made in accordance with law, the tax retained by the respondent was without the authority of law and was liable to be refunded under s. 240 of the Act.

(3.) MR. Prasad, the learned counsel appearing for the petitioner, has drawn my attention to another decision in Purshottamdas Thakurdas v. CIT [1963] 48 ITR (SC) 206, 211, in which the Supreme Court has clearly laid down that the advance tax was essentially a measure introduced to combat the inflation brought about by the war and postwar years which had unfortunately come to stay in the statute book even after the war was over. In other words, the Supreme Court was of the view that payment of advance tax a mere convenience of collection which was liable to be adjusted against the actual tax due when the final assessment order was made. From the above ruling of the Supreme Court, Shri Prasad contended that if there was no assessment order at all, then there was no tax liability and if there was no tax liability, it necessarily followed that the amount paid by way of tax ought to be refund and the purported tax was liable to be refunded.