CHAUDHRY BROTHERS VS PROVINCE OF THE PUNJAB
1993 P T D 582
[Lahore High Court]
Before Munir A. Sheikh, J
NOOR AND SONS
versus
INCOME TAX OFFICER
Writ Petition No. 11290 of 1992, heard on 26/01/1993.
Income Tax Ordinance (XXXI of 1979)---
----S.102---Constitution of. Pakistan (1973), Art.199---Refund---Delay in making refund---Additional payment ---Assessee is entitled to a further sum as compensation at the rate of 15% per annum of the amount of refund from the expiry of three months up to the date on which the refund order was made-- Where the refund of the excess amount was wrongly withheld and assessee was found to be entitled to the same, he would become entitled to the payment of further sum under S.102 which provision of law is self-executory and no further direction was necessary to entitle the assessee to get the said amount.
Under section 102 of the Income Tax Ordinance, 1979, an assessee is entitled to a further sum as compensation at the rate of 15% per annum of the amount of refund from the expiration of the three months up to the date on which the refund order is made. This right has been conferred on the assessee by the statute and the department is under legal obligation to pay the said further sum to him. Where the refund of the excess amount of the assessee was wrongly withheld and he was found to be entitled to the same he became entitled to the payment of further sum under section 102 of the Ordinance which provision of law is self-executory, therefore, no further direction was necessary to entitle the assessee to get the said amount. The act of the department of refusal to make payment of the said further sum to the assessee was not in accordance with law and could not be upheld.
Fayyaz Ahmad Ch. for Petitioner.
Nemo for Respondent.
Date of hearing: 26th January, 1993.
JUDGMENT
In this Constitutional petition the petitioner has sought a direction to the respondent to pay him further sum by way of compensation at the rate of 15% per annum of the amount of refund under section 102 of the Income Tax Ordinance, 1979.
2. The petitioner is an assessee from whom some amount was recovered in advance as income-tax to be assessed later on. After the assessment of income-tax recoverable from the petitioner, the petitioner was entitled to the refund of certain amount in excess out of the amount already recovered from him. He was not paid the said excess amount though he had become entitled to the refund of the same. He filed W.P. No.7802/91 before this Court for a direction to the respondent for the refund of the said excess amount. This writ petition was accepted through judgment, dated 24-9-1991 and the respondent was directed to refund the said excess amount. The petitioner was paid the said amount but his claim for the payment of further sum by way of compensation at the rate of 15% per annum of the amount of refund was declined on the ground that this Court in judgment passed in the said writ petition did not issue any such direction. The petitioner moved C.M. No.1107/92 in the said writ petition in which this Court observed that the previous judgment passed by this Court did not debar the respondent from allowing compensation under section 102 of the Income Tax Ordinance, 19,79 which was otherwise admissible.
3. The grievance of the petitioner is that in spite of the said clarification the respondent has declined to make payment of the said further sum. Nobody has appeared on behalf of the respondent today to contest this writ petition though he has been served.
4. Under section 102 of the Income Tax Ordinance, 1979, an assessee is entitled to a further sum as compensation at the rate of 15% per annum of the amount of refund from the expiration of the three months up to the date on which the refund order is made. This right has been conferred on the assessee by the statute and the respondent is under legal obligation to pay the said further sum to him. In W.P. No.7802/91 it was held that the refund of the, excess amount of the petitioner was wrongly withheld and he was found to be entitled to the same as such he became entitled to the payment of further sum under section 102 of the Ordinance which provision of law is self-executory therefore, no further direction was necessary to entitle' the petitioner to get the said amount. The act of the respondent of refusal to make payment of the said further sum to the petitioner is not in accordance with law and could not be upheld.
5. This writ petition is accepted. The respondent hereby directed to pay within a month to the petitioner further sum by way of compensation at the rate of 15% per annum of the amount of refund from the expiry of the three months up to the date on which the refund order was made. The respondent shall also bear the costs of this petition.
M.BA./N-129/LPetition accepted.