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Gauhati High Court · body

2000 DIGILAW 17 (GAU)

Albert Francis Lobo v. Oil India Ltd.

2000-01-10

D.BISWAS

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This petition has been filed invoking powers of this Court under Article 226 of the Constitution for issue of an appropriate writ commanding the respondents to refund Rs. 1,08,489 deducted in excess of the income tax payable by the petitioner under the head 'salary' for the period from 18.4.1969 till his superannuation on 1.1.1994. 2. It would appear that the petitioner had joined the services of the Oil India Ltd, Duliajan in the Civil Engineering Department and after about 18 months of his joining he was removed from service with effect from 18.4.1969. The petitioner approached the Central Industrial Tribunal at Calcutta. The Reference Case No. 41 of 1975 was disposed of in favour of the petitioner. Both the parties filed writ petitions and eventually the matter was finally settled by the Division Bench of Calcutta High Court by order dated 15.6.1990 whereby the Oil India Ltd was directed to reinstate the petitioner with back wages within a period of three months. By this time the petitioner also attained the age of superannuation as per rules in force. The Oil India Ltd in compliance with the order of the Calcutta High Court paid him the arrears of pay and allowances from the year 1977 till the date of superannuation. At the time of lump sum payment, income tax was deducted at source at the rate in force in the year of payment. The petitioner's contention is that he was entitled to spread over his income form 1977 till the date of his retirement as per provisions of section 89 of the Income Tax Act, 1961, and had the spread over been allowed, he would have been required to pay income tax much less than what was deducted from the amount. After spreading over as per provisions of section 89 and computing at the rate of tax in force for each of the year, the petitioner found that a sum of Rs. 1,08,489 was deducted in excess. Hence, he filed this writ petition for refund of the aforesaid amount. 3. Mr. BM Mahanta, learned counsel appearing for the writ petitioner urged that the amount deducted and deposited in excess with the Income Tax Department by the Oil India Ltd is to be refunded by the company itself. 1,08,489 was deducted in excess. Hence, he filed this writ petition for refund of the aforesaid amount. 3. Mr. BM Mahanta, learned counsel appearing for the writ petitioner urged that the amount deducted and deposited in excess with the Income Tax Department by the Oil India Ltd is to be refunded by the company itself. Shri PC Deka, learned senior counsel for the respondents controverted the aforesaid submission relying on the decisions of the Supreme Court rendered in Sundaram Motors Pvt Ltd vs. Ameeijan & another, AIR 1985 SC 144 and KC Joshi vs. Union of India & others, AIR 1985 SC 1046 . The Supreme Court in the aforesaid cases while dealing with question of refund discussed in details the provisions contained in section 190, 191, 192 and 189 of the Income Tax Act, 1961 and held that the assessee from whose income the tax has been deducted in excess and deposited with the income tax authority is to approach the Assessing Authority and submit his claim for refund of the excess amount so deducted and deposited and, on such claim, the Assessing Authority shall after computation of the income tax at the rate in force for each year shall refund the" amount found to have been deducted and deposited in excess of what is required to be paid. 4. The law laid down by the Hon'ble Supreme Court is clear as to the mode of claim for refund to be made in a case like this. In my considered opinion, the petitioner is required to approach the Assessing Authority and to claim refund in accordance with the provisions of law. The Oil India Ltd as employer being under obligation of law to deduct taxes at source from the amount payable to an employee is not required to make refund when the amount deducted in excess is already deposited with the Income Tax Authorities. The refund undoubtedly, in a case like this, has to be made by the Assessing Authority with whom the amount have been deposited and not the employer. 5. At this stage, the learned counsel for the petitioner pointed out that the petitioner has under wrong notion pursued the remedy before a wrong forum and by this time his claim for refund has become barred under the limitation prescribed under the Act. 5. At this stage, the learned counsel for the petitioner pointed out that the petitioner has under wrong notion pursued the remedy before a wrong forum and by this time his claim for refund has become barred under the limitation prescribed under the Act. The learned counsel highlighting the financial condition of this retired petitioner requested to condone the delay. Considering the fact that the petitioner has been pursuing a remedy before a wrong forum without being properly advised, it is considered to be just and proper in the interest of justice to order that the delay in filing the claim be condoned by the Assessing Authority if the claim is made with a period of two months form today and further direct the authority not to treat the claim of the writ petitioner as time barred in view of the peculiar facts and circumstances as stated above. The Assessing Authority shall dispose of the claim of refund expeditiously in accordance with law. In case of necessity and if approached by the petitioner, the Oil India should also render necessary assistance to the petitioner to pursue the matter before the Assessing Authority. The petition accordingly stands disposed of. No order as to costs.