VIJAY KUMAR BHATI Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE petitioner, a non -resident Indian and a much harassed man, filed this petition under Art. 226 of the Constitution, seeking a writ in the nature of mandamus or other such writ, direction or order directing the two respondents to forthwith grant the refund of tax aggregating to Rs. 16,17,109.32 alongwith interest thereon by redepositing the same in his Foreign Currency Non -Resident Account in the Indian Overseas Bank, Tolstoy Marg, New Delhi. The two respondents, respectively, are the CIT Delhi -V, and the IAC (Asst.), Range XI. The petition was filed on 3rd Aug., 1987. Then, on 5th Oct., 1987, rule D.B. was issued and it was ordered to be listed as high up on 7th Dec., 1987. Somehow the matter has been pending all this period, though the petitioner has been moving successive applications for early hearing of the petition. The petitioner said that under the IT Act, 1961 ("the Act"), the refund could be withheld only under the provisions of S. 245 and, inasmuch as, there was no such order he was entitled to refund forthwith. The respondents did not dispute that the petitioner was entitled to the refund on his succeeding in appeal before the Tribunal, but said that a petition under S. 256(1) had been filed before the Tribunal for referring certain questions of law for the decision of the High Court. This application, they said, was filed on 28th July, 1987, and was pending adjudication. They also said that the first respondent had passed orders under S. 241 to withhold the refund until 30th April, 1988. It is also mentioned that a criminal complaint under Ss. 276C and 277 of the Act had also been filed against the petitioner arising out of the same assessment year (asst. year 1986 -87). In the order under S. 241 filed with the reply affidavit it was stated that a refund of Rs. 18,98,440 had become due to the petitioner in the case.

(2.) DURING the pendency of these proceedings, the petition under S. 256(1) of the Act, as mentioned above, of the respondents was dismissed by the Tribunal, and yet another petition filed under s. 256(2) of the Act before this Court seeking a statement of case from the Tribunal was also dismissed. We have been told that the complaint filed under Ss. 276C and 277 of the Act also met with the same fate and was dismissed.

(3.) DURING the pendency of these proceedings, the Assessing Officer assessed the petitioner for the asst. year 1988 -89 on the interest which had become due to him under S. 244 of the Act. The Assessing Officer found that a sum of Rs. 6,83,244 had become due to the petitioner as interest on the refund of Rs. 16,17,105. The petitioner was accordingly assessed at Rs. 6,83,224. Penalty proceedings for this year were also initiated under S. 271(1)(a) for delay in filing the return, under s. 273(1) for non -filing of the estimate, as also under S. 271(1)(c) for furnishing inaccurate particulars of income.