Kerala H.C : Whether, on the facts and in the circumstances of the case, is the assessee who is entitled to refund of interest collected under s. 220(2) of the IT Act also entitled to interest on the same ?

Counsel Appeared

Menon, for the Revenue : C.M. Devan, for the Assessee

S. PARIPOORNAN, J.:

At the instance of the Revenue, the Tribunal, Cochin Bench, has referred the following question of law for the decision of this Court :

“Whether, on the facts and in the circumstances of the case, is the assessee who is entitled to refund of interest collected under s. 220(2) of the IT Act also entitled to interest on the same ?”

2. The respondent is an assessee to income-tax. The question involved in this batch of cases relates to the asst. yrs. 1961-62 to 1963-64. For these years, certain refunds became due to the respondent (assessee) as a result of the orders passed by the Supreme Court. These amounts consisted of income-tax, penalty and interest levied under s. 220 of the IT Act. The assessee failed to comply with the notice of demand. So interest under s. 220 of the Act was levied and collected. In pursuance of the decision of the Supreme Court, amounts became refundable to the assessee. While granting the refund, the ITO allowed interest under s. 244 of the Act in respect of the amounts representing income-tax and penalty. He did not award interest under s. 244 of the Act on that portion of refund which represented interest levied under s. 220 of the Act and collected from the assessee. The plea of the assessee to allow interest under s. 244 of the Act on the interest collected earlier by the Revenue under s. 220(2) of the Act was negatived. The ITO took the view that the words “any amount” occurring in s. 240 of the Act could only refer to tax and penalty levied. The order of the ITO is dt. 4th Jan., 1980. On appeal, the AAC, by order dt. 6th Oct., 1981, held that the refund referred to in s. 240 of the Act is “of any amount that had become due to the assessee” and so would include the interest under s. 220 of the Act as well, which became refundable by virtue of the proviso to s. 220(2) of the Act. He, therefore, reversed the decision of the ITO and directed the ITO to grant interest on the amount of Rs. 6,903 which represented the interest levied and collected under s. 220(2) of the Act. The Revenue filed an appeal before the Tribunal and assailed the order of the AAC. The Tribunal, after referring to the relevant provisions of the Act, held that the refund of interest under s. 220 of the Act is an amount coming within the purview of s. 240 and, therefore, eligible for the interest contemplated by s. 244 (1) of the Act. The appeals filed by the Revenue were dismissed. Thereafter, the Revenue filed an application to refer certain questions of law arising out of the appellate order of the Tribunal dt. 13th Oct., 1983. The Tribunal accordingly referred the question of law formulated hereinabove for the decision of this Court.

3. We heard counsel for the Revenue and also counsel for the assessee. The argument put forward before the Tribunal was reiterated before us. It was contended that the Tribunal erred in holding that the refund of interest under s. 220(2) of the Act is “an amount” which comes within the purview of s. 240 and, therefore, eligible for the interest contemplated by s. 244(1) of the Act. We are unable to accept this plea. Sec. 220(2) of the Act along with the proviso, s. 240 and s. 244 of the Act may be looked into to understand their import. “220. When tax payable and when assessee deemed in default— …… (2) If the amount specified in any notice of demand under s. 156 is not paid within the period limited under sub-s. (1), the assessee shall be liable to pay simple interest at fifteen per cent per annum from the day commencing after the end of the period mentioned in sub-s. (1) : Provided that, where as a result of an order under s. 154, or s. 155, or s. 250, or s. 254, or s. 260, or s. 262, or s. 264, the amount on which interest was payable under this section had been reduced, the interest shall be reduced accordingly and the excess interest paid, if any, shall be refunded.” “240. Refund on appeal, etc.—Where, as a result of any order passed in appeal or other proceeding under this Act, refund of any amount becomes due to the assessee, the ITO shall, except as otherwise provided in this Act, refund the amount to the assessee without his having to make any claim in that behalf.” “244. Interest on refund where no claim is needed.—(1) Where a refund is due to the assessee in pursuance of an order referred to in s. 240 and the ITO does not grant the refund within a period of three months from the end of the month in which such order is passed, the Central Government shall pay to the assessee simple interest at fifteen per cent per annum on the amount of refund due from the date immediately following the expiry of the period of three months aforesaid to the date on which the refund is granted.”

4. It is common ground that the amount collected by the Revenue included also interest levied and collected under s. 220 of the Act. The amounts became refundable to the assessee as a result of the order passed by the Supreme Court. The refund of the amounts was made to the assessee in consequence of such an order passed by the Court. That was done under s. 240 of the Act. It cannot be disputed that income-tax, penalty and interest collected became refundable to the assessee. Whenever refund of any amount becomes due to the assessee and it is not granted within a particular period, s. 244 mandates payment of interest. Sec. 240 of the IT Act is a general section which envisages refund of any amount that becomes due to the assessee. It will take within its fold even interest levied and collected under s. 220(2) of the Act. Sec. 244(1) makes a reference to s. 240 and states that when a refund is due to the assessee in pursuance of an order referred to under s. 240, interest shall be paid to the assessee by the Central Government at a certain percentage. There is no express or implied prohibition in s. 244 of the Act that interest shall not be paid on interest collected under s. 220(2) of the Act. If the interest collected under s. 220 (2) of the Act also becomes refundable along with other amounts on the passing of an order in appeal and s. 240 envisages refund of such amount, the interest refunded is also eligible to interest under s. 244 of the Act. The Tribunal was justified in holding, on a reference to ss. 220(2), 240 and 244 of the Act, that refund of the interest collected under s. 220(2) is an amount coming within the purview of s. 240 and so eligible for the interest contemplated by s. 244(1) of the Act.

5. We, therefore, answer the question referred to us in the affirmative, against the Revenue and in favour of the assessee.

[Citation : 173 ITR 581]