C P GILBERT Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is petition under Art. 226 of the Constitution of India filed by the petitioner seeking interest on refund amount of Rs. 5,000 from 23rd Nov., 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 Jan., 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 Aug., 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 Nov., 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 Feb., 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 Aug., 1986 wrote to the Income-tax authorities asking for a fresh refund voucher. Accordingly, the IT Department issued a fresh refund voucher on 1st Sept., 1986.

(3.) 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 Asstt. CIT giving relief to the petitioner on 5th Nov., 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 though was prepared in 1982 itself and sent to the petitioner it could not be served on the petitioner.