R.P. Sethi, J.
1. We have heard learned counsel for the parties.
2. In view of the judgment of this court in CIT v. Leader Engineering Works , the Income-tax Appellate Tribunal, Chandigarh Bench, declined the prayer of the Revenue to make a reference to this court under Sub-section (1) of Section 256 of the Income-tax Act, 1961.
3. At the motion stage, learned counsel for the respondent submitted that in view of the Full Bench decision of the Gujarat High Court reported in Bardolia Textile Mills v. ITO : [1985]151ITR389(Guj) , the judgment of this court in CIT v. Leader Engineering Works required reconsideration. He has further contended that, as against the orders earlier passed by this court, the Supreme Court have granted the special leave petition, the judgment aforesaid required reconsideration.
4. The facts as disclosed in the petition are that the respondent-assessee filed its return of income-tax for the relevant year, which was subsequently revised. Consequently, the assessee filed an application claiming interest under Sections 244(1A), 214 and 244(1) of the Act on the refund allowed. The Assistant Commissioner of Income-tax, Central Circle-III, Ludhiana, held that the assessee was entitled to the interest under Section 244(1A) on the payments made in pursuance of the assessment order and on the balance amount. Interest under Section 244(1) was allowed holding that the same was neither governed under the advance tax payment, nor in pursuance of any assessment. The calculations of interest were made, vide consolidated order passed under Section 154.
5. Aggrieved by the order passed by the Assistant Commissioner of Income-tax, the assessee preferred an appeal before the Commissioner of Income-tax (Appeals) (Central), Ludhiana, who, vide her order dated November 8, 1990, allowed the appeal of the assessee on the basis of the findings given in the assessee's case for the earlier assessment year, holding that the interest under Section 244(1A) be allowed on the refund determined as a result of the excess advance tax payments made, treating the advance tax so paid prior to the assessment order, as having been paid on the date of the order itself.
6. Not satisfied with this order, the Revenue preferred a second appeal before the Income-tax Appellate Tribunal, Chandigarh Bench, who vide their order dated March 11, 1992, dismissed the appeals so filed by the Department. The prayer for making a reference to this court was rejected in view of the judgment of this court in CIT v. Leader Engineering Works .
7. According to Section 214 of the Income-tax Act, the Central Government is liable to pay simple interest at the rate of 15 per cent. per annum on the amount by which the aggregate sum of any instalments of advance tax paid during any financial year in which they are payable under Sections 207 to 213 exceeds the amount of the assessed tax, from the 1st day of April next following the said financial year to the date of the regular assessment for the assessment year immediately following the said financial year, and where any such instalment is paid after the expiry of the financial year during which it is payable by reason of the provisions of Section 213, interest as aforesaid shall also be payable on that instalment from the dale of its payment to the date of regular assessment.
8. Section 244A(1) provides :
'Where refund of any amount becomes due to the assessee under this Act, he shall, subject to the provisions of this section, be entitled to receive, in addition to the said amount, simple interest thereon calculated in the following manner, namely :--
(a) where the refund is out of any tax collected at source under Section 206C or paid by way of advance tax or treated as paid under Section 199, during the financial year immediately preceding the assessment year, such interest shall be calculated at the rate of one per cent. for every month or part of a month comprised in the period from the 1st day of April of the assessment year to the date on which the refund is granted ;
Provided that no interest shall be payable if the amount of refund is less than ten per cent. of the tax as determined under subsection (1) of Section 143 or on regular assessment ;
(b) in any other case, such interest shall be calculated at the rate of one per cent. for every month or part of a month comprised in the period or periods from the date or, as the case may be, dates of payment of the tax or penalty to the date on which the refund is granted.
Explanation.--For the purposes of this clause, 'date of payment of tax or penalty' means the date on and from which the amount of tax or penalty specified in the notice of demand issued under Section 156 is paid in excess of such demand.'
9. This court in CIT v. Leader Engg. Works considered the scope of Section 244(1A) of the Income-tax Act and held (at page 531) :
'Section 244(1A) provides that if an assessee is entitled to refund of an amount as a result of the appellate order or other proceedings under the Act, the assessee is entitled to interest at the specified rate on the amount so found to be in excess from the date on which such amount was paid to the date on which the refund is granted. This provision further notices that the provision will relate to the amounts having been paid after March 31, 1975. Since the advance tax was paid before March 31, 1975, the claim of the Revenue was that Section 244(1A) was not applicable, whereas the case of the assessee was that the payment of tax would be deemed to have been made on January 27, 1977, when the regular assessment was made by adjustment of the advance lax towards the tax liability created by the regular assessment order dated January 27, 1977, arid, therefore, it should be taken that the tax was paid on January 27, 1977, pursuant to the regular assessment order and, therefore, the provision was applicable.
On a consideration of the matter, we are of the opinion that the advance tax loses its identity the moment it is adjusted towards the tax liability created under the regular assessment and takes the shape of payment of tax in pursuance of an order of assessment and in this case this happened on January 27, 1977, when the regular assessment order was made and this happened after March 31, 1975, and, therefore, Section 244(1A) was clearly applicable. Section 214 provides for payment of interest to an assessee on the excess amount of advance tax with effect from the first day of April next following the said financial year to the date of the regular assessment for the assessment year immediately following the said financial year. This further shows that after adjustment of advance tax at the time of regular assessment, if some balance remains to the credit of the assessee, that balance is treated as advance tax and the amount adjusted therefrom is treated as payment of tax. If the amount adjusted towards tax is found refundable in pursuance of the appellate order or other proceedings under Section 244(1A) of the Act, the assessee is entitled to interest thereon at the rate specified in Section 244(1) of the Act.'
10. The view taken by this court is stated to have been followed by the Bombay High Court in the case of Cyanamid India Ltd v. K.N. Anantharama Ayyar : [1993]203ITR561(Bom) , by the Kerala High Court in Asian Techs Ltd. v. Deputy CIT : [1995]213ITR378(Ker) and the Delhi High Court in National Agricultural Co-operative Marketing Federation of India Ltd. v. Union of India : [1981]130ITR928(Delhi) . The Full Bench of the Gujarat High Court in the case of Bardolia Textile Mills v. CIT : [1985]151ITR389(Guj) is shown to have taken a contrary view.
11. The mere fact that the Full Bench of the Gujarat High Court has taken a different view from the one taken by this court, would not be sufficient to make a reference under Sub-section (2) of Section 256 of the Income-tax Act as no question of law arises for adjudication within the meaning of the aforesaid provision.
12. In CIT v. Shiv Parshad , a Division Bench of this court considered this aspect of the matter and held (headnote) :
'If a question of law has been settled by a particular High Court after dissenting from the view taken by another High Court and if thereafter similar cases come up before the Income-tax Tribunals within the jurisdiction of that court or before that court, it could not be said that a question of law arises within the meaning of Section 256(1) or Section 256(2) of the Income-tax Act, 1961.'
13. This court in CIT v. Lakshmi Printing Co. :
'It is the acknowledged position of law that the powers exercised under Sub-section (2) of Section 256 of the Act are advisory in nature. Being a special jurisdiction, the High Court can require the making of a reference upon a question of law which has not been settled or decided by it or by the apex court. In view of the Full Bench judgment of this court in Sovrin Knit Works' case , no further action is required to be taken. The mere admission of an appeal in the Supreme Court without even staying the operation of the judgment of this court cannot be held to be a question of law requiring a direction for making a reference in terms of Sub-section (2) of Section 256 of the Act.'
14. We are, prima facie, of the opinion that the judgment of this court in CIT v. Leader Engineering Works does not require any reconsideration, Otherwise also, even if in a case decided under Section 256 of the Act, a different view is possible, the remedy is not to reopen the case, as admittedly the power vested in the court under such circumstances is advisory in nature. If aggrieved, the remedy of approaching the Supreme Court can be availed of. There is no merit in the petition, which is hereby dismissed.