AMLESHWAR DAYAL SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN our opinion, the first of the two questions referred by the Board of Revenue should be answered in the affirmative, & the second in the negative. Section 27 (2), Bihar Agricultural INcome-tax Act, 1938, imposes art obligation on the Agricultural INcome-tax Officer to refund any amount which may have been paid by an assessee in excess. Sub-rule (2) of Rule 19 imposes a similar duty on the Bihar-Assistant Cpmr of Agricutural INcome-tax & the Bihar Board of Agricultural INcome-tax. IN every case in which one of these tribunals is satisfied that the sum paid is in excess of what ought to have been paid, it is its duty to causea refund to be made by the Bihar Agricultural INcome-tax Officer concerned. IN the present case, the reason, presumably, why the assessee did not apply for the return of the excess amount he had paid as soon as the Assistant. Comr allowed his appeal was that the department carried the matter to a higher tribunal. It was convenient to the assessee and also-certainly to the department for him not to do so. However that may be, R. 19 (2) certainly imposed a duty on the final tribunal, namely, the Bihar Board of Agricultural INcome-tax, to cause a refund to be made. The proviso to Rule 19 (3) is completely at variance with Rule 19 (2). The former contemplates that no refund | can be allowed unless & until a claim has been made, & provides that such a claim must be made within a certain limited period. The latter, on the other hand, imposes an obligation on the tribunal which deals with the matter to cause a refund to be made, &, by implication to be made immediately. The learned Govt Advocate appearing for the State of Bihar has invited our attention to Section 48 & Section 50 of the INdian INcome-tax Act. Mr. Mitra. is, no doubt, correct in saying that the draftsman of the rules under the Bihar Agricultural. INcome-tax Act had Sections 48 & 50, INdian INcome-tax Act, 1922, before him when he drafted Rule 19. The draftsman, however, omitted, to notice that refunds other than refunds of the kind referred to in Section 48 (2), INdian INcome tax Act are dealt with in the other sections contained in Chapter VII of the Act. It seems quite clear that Section 50 was intended to apply only to cases in which a claim had to be made for a refund, as, for instance, where double tax had been paid in INdia & in Pakis tan, or in INdia & in the United Kingdom. INs such a case, it is reasonable that if a claim for refund is not made within a certain period, the claim should not be entertained. When, however, an assessee appeals against an assessment, there is implied in his appeal a claim to a refund of any sum which he may already have paid in excess. The reference is disposed of accordingly. The petnr is entitled to his costs. The hearing fee is assessed at Rs. 100/-.

(2.) MR. Rai Paras Nath states that a sum of Rs. 100/- was deposited as costs, or as security for costs, in favour of the Board of Revenue. This amount must, of course, be refunded) to him on an appln made to the Board of Revenue.