V. K. SINGHAL, J, J. ( 1 ) THE petitioner has claimed a refund of Rs. 4,49,62,187/- as interest for delay of 45 months in refunding Rs 9. 77 crores as interest. It was found that a sum of Rs. 9. 77 crores is refundable to the petitioner in respect of the assessment year 1991-92. Certain certificates of t. D. S. were submitted by the petitioner which were not originally allowed by the Assessing Authority on the ground that they lack some particulars/details in the said certificates. Subsequently it was brought to the notice of the Assessing Authority that there is separate notification issued in respect of the TDS certificate to be issued by the Reserve Bank in the year 1989 which was not noticed earlier. The assessing authority being satisfied allowed the refund. The claim of such refund was Rs. 37. 59 Crores. The total claim was of Rs. 45. 60 crores which included Rs. 37. 59 crores. The total claim disallowed was in respect of 733 TD certificates for Rs. 40. 93 crores. The dispute relates to the certificates issued by the Reserve Bank of India. Jn rest of the certificate, since there was a mistake on the part of the assessee the refund of interest was denied on the ground that it can be only from the date of rectification, done. That point is not in dispute before me. In respect of Rs. 37. 59 crores there was no defect and in accordance with the Board's circular dated 18. 7. 1989 which was not noticed by the assessing authority the refund should have been allowed in the original intimation under Section 143a on 2. 2. 1992. The Reserve Bank of India also written a letter dated 3. 11. 92 that its offices were exempted from the need to state the particulars in view of the Board's clarification dated 18. 7. 1989. ( 2 ) THE petitioner has also written a letter to the Board on 25. 1. 93 and he was informed that the Chief Commissioner has been directed to resolve the dispute. The refunds were given on 31. 3. 93, 5. 5. 93 and 31. 5. 93 without payment of any interest. Thereafter the petitioner claimed for refund of interest on the belated refund of Rs. 37. 59 crores claiming that interest is payable from 1. 4. 1991. The refunds were given on 31. 3. 93, 5. 5. 93 and 31. 5. 93 without payment of any interest. Thereafter the petitioner claimed for refund of interest on the belated refund of Rs. 37. 59 crores claiming that interest is payable from 1. 4. 1991. It appears that some directions were issued by the Commissioner on 19. 8. 1993 which were passed, according to the petitioner, without hearing him or without communicating the order. Since the refund from 1. 4. 1991 to the date of actual refund was not granted, the petitioner made a representation to the Committee of Secretaries for filing of Writ petition. Instructions were issued to the Chief Commissioner for granting the refund. Interest for the period from 1. 4. 1991 to the date of refund was granted on 31. 12. 96. Now the grievance is that the interest on the delayed payment of such interest from the date of refund i. e. 1. 3/5. 93 to 31. 12. 96 should be given. This prayer was not accepted. In this Writ Petition it is claimed that had the refund of interest for the period from 1. 4. 91 to 31. 3. 93, 5. 5. 93 and 31. 5. 93 would have been given at that time, the petitioner would not have suffered financial loss because of delay in granting the refund. It is stated that there was no fault on the part of the petitioner and it was because of mis-interpretation of the provisions read with the clarification issued by the RBI that a mistake was committed by the assessing Authority initially which he has subsequently rectified. The mistake committed by the Appellate Authority cannot confer any power on him to deprive the petitioner of the refund amount which is due and if the refund is not granted in time then the petitioner is entitled for refund of interest on such interest. It is submitted that there is no provision for grant of interest on interest. But the Court in the equitable jurisdiction should grant that relief as has been done by this Court in the case of MANGALORE CHEMICALS AND WIRES vs DEPUTY COMMISSIONER OF COMMERCIAL TAXES wherein it was observed that,"the writ jurisdiction is an equitable jurisdiction; the width of this jurisdiction should not be limited so as to exclude a power to award interest in appropriate cases. To what extent and under which circumstances, interest should be awarded, depends upon the circumstances of each case, to be judicially considered. To deny the power to the writ Court to award interest to a person who is unjustly deprived of the money which he is legally entitled to enjoy as he deems fit, will be unduly restricting the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India. " ( 3 ) THE petition was accordingly allowed directing to make payment of interest at the rate of 10% per annum ( 4 ) THE Gujarath High Court in D. J. WORKS vs DEPUTY commissioner OF INCOME TAX, observed that, Section 214 (1)recognises in principle the liability to pay interest on the amount of tax paid in excess of the amount of assessed tax and which is retained by the Government. Delay in granting the refund was held sufficient to allow interest on the interest amount which was not refunded in time. ( 5 ) RELIANCE is also placed on the judgment given in MARITIME services PVT LTD. vs UNION OF INDIA, where it was held that if any authority without any rational withheld the amount repayable to the petitioner and thereby earned advantage are bound to refund the amount along with interest. ( 6 ) THE decision given by the Madras High Court in UNION OF INDIA vs COROMANDEL PRODORITE LTD. is also given to the same effect wherein the decision of the Apex Court in ELPRO international LTD. vs JOINT SECRETARY, GOVERNMENT OF india, MINISTRY OF FINANCE, was considered and the Court observed that, the absence of provision, however, cannot prevent a court from exercising its jurisdiction in exercise of the powers under article 226 of the Constitution of India so as to do justice between the parties and make an order in equity. As the Court of Equity, the high Court, while exercising powers under Article 226 of the constitution of India, has to reach out to undo injustice. There is no bar imposed upon the Courts for granting to a citizen interest on the amounts which have been illegally and without any authority of law have been withheld from the citizen. As the Court of Equity, the high Court, while exercising powers under Article 226 of the constitution of India, has to reach out to undo injustice. There is no bar imposed upon the Courts for granting to a citizen interest on the amounts which have been illegally and without any authority of law have been withheld from the citizen. There has been, indeed, culpable delay in making the refund on the part of the appellants and, therefore, the learned Single Judge was perfectly right and justified in directing the payment of interest on the amount wrongfully withheld. The Apex Court opined that the excise duty wrongly collected in 1966 and refunded in 1977 has to be refunded with interest for the period in which it was wrongly withheld. The decision given by the Calcutta High Court in 1994 STC 515 is also relied wherein it was also observed that there is no provision for payment of interest under entry tax. Since the refund was not granted inspite of the decision of the Court, interest at the rate of 12% per annum was directed to be paid from the date of the judgment. ( 7 ) ON behalf of the respondent reliance is placed on the judgment given in O. RM. M. SP. S. V. P RANCHANATHAM CHETTIAR vs commissioner OF INCOME TAX, MADRAS. That was a case where the assessment was framed under the 1922 Act and refund become due because of judgment of the Apex Court rendered after coming into force of 1961 Act. It was found that in view of the provisions of Sectiori 297 (2) (i) of the Act of 961, no interest is payable on the amount to be refunded and the 1961 Act contains no provision for refund unless the matter comes within the scope of section 243. Reliance is also placed on the judgment given by the andhra Pradesh High Court in the case of GULBANU RAZACK vs asst. COMMISSIONER OF INCOME TAX (INVESTIGATION)7, wherein it was observed that no interest can be awarded under the income Tax Act 1961 unless there is a provision in the Act. ( 8 ) I have considered over the matter. It is not in dispute that the act does not contain a provision for interest on the delayed payment of interest. COMMISSIONER OF INCOME TAX (INVESTIGATION)7, wherein it was observed that no interest can be awarded under the income Tax Act 1961 unless there is a provision in the Act. ( 8 ) I have considered over the matter. It is not in dispute that the act does not contain a provision for interest on the delayed payment of interest. It is only in the equitable jurisdiction the matter has to be examined as to whether the delay was without any justifiable reason or it was on account of any mistake of the assessee. If certain clarification are needed then there may be justification in delay of the interest but where there is no mistake on the part of assessee and IDS Certificate submitted are in accordance with the requirement of the Act/rules and the instructions issued by CBDT - the department should have refunded the tax which was found in excess then the assessed tax in time. The delay since is not attributable to the assessee, the interest should have been given to him which in fact has been given. If the interest was given in 1993, there would have been no problem but the matter before this Court is only on the point as to whether the assessee is entitled for the refund of interest on the amount of interest. Once it is found that there was no fault of the petitioner and is entitled for interest on the refund, then the delay in granting refund of interest for which there are no provision and which should have been refunded in time, will make him entitled for interest on delayed payment of interest. Any delay which is un-attributable to the assessee would bring the matter in equitable jurisdiction. Money was retained by the respondent and the petitioner was deprived of the amount from 1993 to 1996 december. If the tax is illegally collected or paid in excess, and what is due is not refunded in time, it only bring a bad reputation to the Department. It is the duty of the assessing authority and Recovery officer to recover the taxes due in time. Similarly, it is the duty to refund the tax and interest in time. If there is any dereliction of duty, it may be a cause for giving appropriate direction against the officer concerned for an administrative action as well. It is the duty of the assessing authority and Recovery officer to recover the taxes due in time. Similarly, it is the duty to refund the tax and interest in time. If there is any dereliction of duty, it may be a cause for giving appropriate direction against the officer concerned for an administrative action as well. The delay may be with reasonable cause or without reasonable cause. It is not explained that the delay in granting the refund of interest was with a reasonable cause. It may not be a case of malafide and therefore, I do not consider it necessary that any action has to be taken against the officer concerned and leave the matter with a remark that, if it is found by this Court that statutory duties are not performed by the appropriate action. There is no provision for grant of interest on the delay in refunding the interest under the income Tax Act and it is only in the equitable jurisdiction power under Article 226 of the constitution of India could be exercised. ( 9 ) HARMAN J. , observed 'equity is not to be presumed to be of an age past child bearing". Lord Mansfied's contribution, however, still remains obscure. At least he could not claim the credit for the occasion a dozen years later when the house of Lords and a stroke of printer's genius transformed the dictum in to a statement that equity was not presumed to be of an "age past child bearing". Simpson's motor Sales (London) Ltd. , vs Hendon Corporation (1963) the Times May 7: cp. SC as reported (1964) AC 1088 at 1127. ( 10 ) EVEN the claim of equity is not undisputed; the rival is the common law itself. In one appeal Fletcher Moulton LJ objected that counsel's argument was supported by no precedent. Counsel's reply was that " the common law is the mother of precedents". "yes Mr. Bank" came the reply "but she is a mother who is now past the age of child bearing. " "with your Lordship's assistance" counsel promptly responded, "i shall hope to prove the contrary" H. Pictcher Mouldton. The life of Lord Moulton (1922 op. 6) ( 11 ) THE influence of equity is great. "yes Mr. Bank" came the reply "but she is a mother who is now past the age of child bearing. " "with your Lordship's assistance" counsel promptly responded, "i shall hope to prove the contrary" H. Pictcher Mouldton. The life of Lord Moulton (1922 op. 6) ( 11 ) THE influence of equity is great. " who can doubt that courts of equity in enforcing the great principle that a trustee shall not profit by his trust nor even place himself in a position where his private interest may collide with his fiduciary duty, have raised the level of business honor, and kept awake a conscience that might otherwise have slumbered" Cardozo J. The Growth of the law (1924) P. 26. ( 12 ) AGAIN, "equity has its distinctive standards of fidelity and honour, higher at times than the standards of the market place. " bufjim vs Peter Barcelous Co. , 289 US 227 t 237 (1933) per cardozo J. , "there are cannons of the Court of equity which have their foundation, not in the actual commission of fraud, but in that hallowed orison, 'lead us not into temptation. " Wormlcy vs Wormlcy 21 US 421 at 463 (1803) per Johnson J. , "a constructive trust is the formula through which the conscience of equity finds expression. " Beatty vs Guggenham Exploration Co. , 225 NY 380 at 386 (1919) per Cardozo J. , True Equity follows the law, but not slavishly nor always. " Graf vs Hope Building corporation 254 NY at 9 (1939) per Cardozo CJ dissenting. Fortunately, "equity does not demand that its suitors shall have led blameless lives. " Loughran vs Longhran, 292 IS 216 at 229 (1934) per Brandeis J. ( 13 ) AFTER examining in the above context, it could be observed that the Bank was prompt in claiming the refund of interest for which no justifiable ground has been shown for the delay, depriving the fruits of such refund. The collection of tax is one of the function of state and under Article 265 tax has to be levied and collected by authority of law. If at the point of levy if it is found that it is not leviable or refundable, then the statutory duty is on the department to refund it with promptness. In these circumstances, equitable jurisdiction has to be invoked. If at the point of levy if it is found that it is not leviable or refundable, then the statutory duty is on the department to refund it with promptness. In these circumstances, equitable jurisdiction has to be invoked. I consider it proper that the claim for refund of interest should be allowed. ( 14 ) THE question remains of rate of interest. I consider it proper that interest at the rate of 9% would be refunded by the respondent to the petitioner within a period of 60 days from the date of submission of a copy of this order.