N.K. Sud, J.
1. Petitioner has filed this petition seeking a direction to the respondents to refund an amount of Rs. 89,228 along with interest due thereon on account of excess payment recovered from him under the Kar Vivad Samadhan Scheme, 1998 (for short 'the Scheme'), enacted under Chapter VI of the Finance (No. 2) Act, 1998 (for short 'the Act').
2. The petitioner had filed a declaration dt. 14th Dec., 1998 (Annex. P-2), under Section 89 of the Act, in respect of disputed tax arrears on account of tax, interest and penalty for the asst. yr. 1995-96 in respect of which appeal was pending before CIT(A), Faridabad. On the basis of the said declaration, CIT, Rohtak, the designated authority, issued a form of certificate of intimation under Section 91 of the Act, dt. 23rd Feb., 1999 (Annex. P-3). This intimation was accompanied by the calculations whereby the disputed amount of tax arrears were determined at Rs. 17,36,754, on which following amounts were determined as payable :
(i) Amount payable under the Kar Vivad Samadhan Rs. 6,07,864Scheme 35% of disputed amount(ii) 50% of the additional tax and interest due thereon Rs. 89,228(iii) Penalty under Section 271(1)(b) not covered in tax arrears Rs. 6,000------------Total Rs. 7.03.092------------
3. Petitioner vide letter dt. 27th Feb., 1999 (Annex. P-4), pointed out that the designated authority was not justified in requiring it to deposit Rs. 89,228 on account of 50 per cent of additional tax and interest. However, since as per the Scheme, the tax determined by the designated authority was required to be deposited within 30 days in order to avail the benefit of the Scheme, the petitioner deposited the demand of Rs. 7,03,092 under protest, on 22nd March, 1999. Thereafter, a revised form of certificate of intimation, dt. 23rd March, 1999 (Annex. P-6), was issued by the designated authority, accepting the claim of the assessee. Thus, the amount payable was reduced from Rs. 7,03,092 to Rs. 6,13,864 (7,03,092-89,228). The certificate for full and final settlement of tax arrears under Section 92 r/w Section 91 of the Act in Form No. 3 (Annex. P-7) was also issued on 11th Aug., 1999.
4. The assessee, thereafter, has been making successive representations to the respondents for refund of Rs. 89,228 recovered from it in excess of the amount due under the Scheme. Copies of such representations have been placed on record as Annexs. P-8 to P-13. Not receiving any response from the respondents, the petitioner has approached this Court by filing the present writ petition.
5. In the written statement, the respondents have taken the stand that in view of the bar imposed by Section 93 of the Act, the excess amount is not refundable. Reliance has also been placed on the judgment of the Supreme Court in Union of India and Ors. v. Onkar S. Kanwar and Ors. : 2002ECR275(SC) .
6. We have heard the counsel for the parties and perused the relevant provisions. Section 93 of the Act reads as under :
'Any amount paid in pursuance of a declaration made under Section 88 shall not be refundable under any circumstances.'
7. From the facts already noticed, it is clear that the CIT had committed an error while computing the amount payable by the petitioner under the Scheme and had wrongly included the sum of Rs. 89,228 in the total demand. This had duly been brought to the notice of the CBDT by the petitioner vide letter dt. 27th Feb., 1999. However, since the amount was required to be deposited within 30 days of the intimation under Section 91 of the Act, the assessee had deposited the entire amount under protest. The error in calculation stands accepted by the CIT as per revised intimation dt. 23rd March, 1999 (Annex. P-6). As per this intimation, the petitioner was only required to deposit a sum of Rs. 6,13,864. Thus, the amount paid under the Scheme can only be Rs. 6,13,864 and not Rs. 7,03,092. The provisions of Section 93 of the Act only govern the amount which is due under the Scheme. Similar view has been expressed by this Court in Biru Mal Gauri Shankai Jain and Co. v. CIT and Ors. , wherein it has been held that if a declaration does not fall within the purview of the Scheme, the tax paid in pursuance thereof is refundable. Similarly, in Vasantial Tulsidas Agrawal v. CIT : [2002]254ITR255(Guj) , a Division Bench of the Gujarat High Court had held that it is the obligation of the CIT to refund the excess amount where it is found that the same had been paid by mistake. In the present case, the excess amount had not even been paid under a mistake. It had been paid under protest.
8. In view of the above, we are satisfied that the petitioner is entitled to the refund of the amount of Rs. 89,228 recovered from it in excess of the amount due under the Scheme which had been paid under protest.
9. Before parting, we would like to mention that the decision of the Supreme Court in Onkar S. Kanwai's case (supra) is clearly distinguishable. In that case, refund was sought in respect of tax paid under valid declarations made by the directors of the company which had been accepted. In the present case, the amount of Rs. 89,228 cannot be said to be charged under any declaration made by the petitioner.
10. The writ petition is, accordingly, allowed. The respondents are directed to refund the amount of Rs. 89,228 along with interest due thereon, if any, in accordance with law. The needful be done within two months from the date on which a copy of this order is made available to them. No costs.