Madhya Pradesh H.C : An appropriate writ, direction or order be issued against the respondents No. 1, 2 and 4 directing them to delete interest amounting to Rs. 1,04,471 for asst. yr. 1973-74 and Rs. 2,56,623 for asst. yr. 1974-75

Counsel Appeared

Kochatta, for the Petitioner : R.L. Jain, for the Respondent

ORDER

A.M. SAPRE, J. :

By this petition, filed under Arts. 226 and 227 of Constitution of India the petitioner, an assessee under the IT Act, claims following reliefs for the asst. yrs. 1973-74 and 1974-75 :

“An appropriate writ, direction or order be issued against the respondents No. 1, 2 and 4 directing them to delete interest amounting to Rs. 1,04,471 for asst. yr. 1973-74 and Rs. 2,56,623 for asst. yr. 1974-75 ; (b) The respondents No. 2 and 4 be restrained by an appropriate writ, direction or order from levying interest under s. 220(2) of the IT Act, wherever refund is already due to the petitioner under any other Act if the demand is posterior to such refunds.”

2. In short the petitioner claimed that the demand of interest made by ITO amounting to Rs. 1,04,471 for the year 1973-74 and Rs. 2,56,623 for the asst. yr. 1974-75 be either deleted or it be adjusted against the huge refund which he has to claim from the Department in estate duty case under the ED Act (since repealed) wherein the petitioner was assessed as an accountable person in the case of one deceased—H.H. Maharaja Yashwant Rao Holkar.

3. It may be mentioned that the need to levy interest arose because the assessee (petitioner) failed to pay certain demands for these two years. The demand for interest was raised under s. 220 (2) of the Act. This imposition was assailed by the petitioner in appeals to CIT(A). This appeal was dismissed on the ground that no appeal lay against such imposition. In further appeal to the Tribunal the same was dismissed by upholding the order of CIT(A). The petitioner then sought reference to this Court being MCC No. 253/85 under s. 256(1) of the Act. Even the reference was answered against the petitioner on 22nd Sept., 1988. While answering the reference against the petitioner, this Court held as follows. It is reported in Princess Usha Trust vs. CIT (1988) 73 CTR (MP) 143 : (1989) 176 ITR 227 (MP) : TC 43R.726. “Learned counsel for the assessee was unable to point out any provision of law, under which the amount, if any, refundable to the assessee under any other Act, could be set off against the amount of tax payable by the assessee under the Act. It was not disputed that the provisions of s. 245 of the Act were not attracted. Sec. 220(2) of the Act provides that if the amount specified in the notice of demand under s. 156 is not paid within 35 days of the service of notice, the assessee shall be liable to pay interest. The levy of interest, in the instant case, was under the provisions of sub-s. (2) of s. 220 of the Act. The decision in Central Provinces Manganese Ore Co. Ltd. vs. CIT (1986) 58 CTR (SC) 112 : (1986) 160 ITR 961 (SC) : TC 43R.242 is distinguishable on facts. In the instant case, the levy of interest was not a part of the process of assessment. By denying liability to pay interest under s. 220(2) of the Act, the assessee cannot be held to be denying its liability to be assessed under the Act. Sec. 246(c) of the Act was, therefore, not attracted. The Tribunal was, therefore, justified in holding that, on the facts and in the circumstances of the case, the assessee had no right to prefer an appeal from the order levying interest under the provisions of s. 220(2) of the Act.

For all these reasons, our answer to the question referred to this Court is in the affirmative and against the assessee. In the circumstances of the case, parties shall bear their own costs of this reference.” It is after the decision of reference, the petitioner instead of persuing the matter further to Supreme Court filed the present petition and prayed the same relief which they were claiming in reference proceedings. During pendency of petition, the petitioner sought time to make an application to concern AO praying the same relief. However, this application was rejected by AO vide its intimation dt. 6th May, 1999 (Annexure-A) to the return filed by Department. Heard Shri Kochatta, learned counsel for petitioner and Shri R.L. Jain, learned counsel for respondents. Having heard the learned counsel for the parties. I have come to a conclusion that petition has no merit and hence deserves dismissal. In my opinion, this issue was already raised and gone into at the instance of petitioner in the earlier round of litigation referred supra and the same attained finality in reference. The petitioner cannot now urge the same ground by filing a writ and assail the demand of interest levied by the AO. This Court while answering the reference expressly examined this issue in aforequoted para and negatived the plea on its merits. Though the said plea was examined in the context of issue whether in a case of levy of interest, appeal lay or not but fact remains that the plea did arise out of the issue and was expressly gone into and decided against the petitioner, it is an admitted fact that the same arose in the same assessment year for which the present petitioner is filed.

In my opinion, the issue sought to be urged has attained finality in reference proceedings and the same cannot be now again examined nor it can be allowed to be reagitated in writ petition. Even otherwise, the issue sought to be urged has no substance. It has been expressly dealt with and answered against the petitioner by this Court while answering reference. It was held by this Court that in the absence of any provision of law under which the amount, if any, refundable to assessee under any other Act could be set off against the amount of tax payable by the assessee under the Act, no orders could be passed for adjustment. In my opinion, the same reasoning applies to repel the submissions urged in this writ.

8. In view of aforesaid discussion, I do not find any merit in the writ. It is accordingly dismissed. No costs.

[Citation : 247 ITR 546]