K.T.M.S. MAHMOOD VS INCOME-TAX OFFICER (SIXTH)
2001 P T D 1750
[241 I T R 206]
[Madras High Court (India)]
Before N. V. Balasubramanian, J
K.T.M.S. MAHMOOD
Versus
INCOME‑TAX OFFICER (SIXTH) and another
Writ Petition No. 1836 of 1986, decided on 22/08/1996.
Income‑tax‑‑‑--
‑‑‑‑Refund‑‑‑Refund due in consequence of order of Tribunal‑‑‑Tribunal's order reversed by High Court ‑‑‑Tribunal's order has no legal force‑‑ Assessee not entitled to refund‑‑‑Indian Income Tax Act, 1961, Ss. 240 & 244.
A certain amount became refundable to the assessee in view of the order of Income‑tax Appellate Tribunal deleting certain additions made in the assessment of the assessee. A writ petition was filed for a mandamus directing the Department .to refund a sum of Rs.1,90,186 stated to be due with future interest as per the provisions of ‑ sections 240 and 244 of the Income Tax 'Act, 1961. During the pendency of the writ petition, on a reference, the High Court did not accept the views of the Tribunal that the addition should be deleted and answered the questions in favour of the department.
Held, that the petitioner was not entitled to claim the refund of Rs.1,90,186 or the interest thereon on the basis of the order of the Income- tax Appellate Tribunal, which had no legal force after the judgment of the High Court in the reference.
CIT v. K.T.M.S. Mahmood (1997) 228 ITR 113 (Mad.) ref.
Devanathan and K.C. Rajappa for Petitioner.
S.V. Subramaniam for C.V. Rajan for Respondents.
JUDGMENT
This writ petition is posted for hearing today. Mr. Devanathan, Advocate, represented the petitioner. Learned senior standing counsel for income‑tax cases Mr. S.V. Subramaniam represented that the writ petition has been filed for a mandamus directing the respondents to refund a sum of Rs.1,90,186 stated to be the due with future interest as per the provisions of sections 240 and 244 of the Income Tax Act,. 1961. The case of the writ petitioner is that the refund has become due to the petitioner consequent to an appellate order of the Income‑tax Appellate Tribunal in I.T.A. No.2054 of 1979, dated May 12, 1980, deleting certain additions made in the assessment of the petitioner allowing the appeal preferred by the petitioner.
Learned senior standing counsel represented that as against the order 'of the Income‑tax Appellate Tribunal in I.T.A. No.2054 of 1979, dated May 12, 1980, the Income‑tax Department has filed T.C.P. No.316 of 1982, and T.C.P. No.213 of 1983, on the file of this Court requesting this Court to direct the Tribunal to state a case and refer certain questions of law arising out of the order of the Tribunal. It is mentioned in the affidavit that this Court has directed the Appellate Tribunal to state the case and certain questions of law also were referred. Accordingly, the Income‑tax Appellate Tribunal stated a case to this Court which came to be numbered as T.C. No. 1117 of 1984 (CIT v. K.T.M.S. Mahmood (1997) 228 ITR 113) on the file of this Court and this Court by a judgment, dated August 8, 1996, has not accepted the views of the Tribunal that the addition should be deleted and answered the questions arising in the tax case in favour of the Department. In other words, the assessment, modified in the appeal by the Commissioner of Income‑tax (Appeals) was upheld in the judgment. Hence, the claim of the petitioner that he is entitled to the refund of the amount of Rs.1,90,186 with interest is not sustainable in view of the judgment of this Court in T.C. No. 1117 of 1984, dated August 8, 1996. The scenario is completely changed after the judgment in T. C. No. 1117 of 1984, and the petitioner has no right to claim the refund or the interest on the basis of the order of the Income‑tax Appellate Tribunal, Madras, which has no legal existence in view of the answers rendered by this Court of the questions of law referred in the department's reference. In other words, once the foundation on which the claim for refund was made has disappeared by reason of the judgment of this Court in T.C. No. 1117 of 1984, the claim of the petitioner also must share the same fate. Accordingly, the petitioner is not entitled to claim the refund of Rs.1,90, : 86 or the interest thereon on the basis of the order of the Income‑tax ‑Appellate Tribunal, which has no legal force after the judgment in T.C. No.1117 of 1984. Accordingly, this Court holds that the writ petition has no merit due to the change in circumstances created by the fluctuating fortunes of litigation. Consequently, the writ petition is dismissed. No costs.
M.B.A./573/FCPetition dismissed.