Dilip Kumar Seth, J.
Facts:
1. The petitioner had moved Writ Petition No. 107 of 2001 before this court. In the said writ petition, it was alleged that the writ petitioner by way of an application made a prayer to the income-tax authorities for refund of certain amount of tax paid in excess, but the concerned authority was not refunding the same. By an order dated January 22, 2001, the writ petition was disposed of by directing the assessing authority to dispose of the petitioner's application for refund in accordance with law. Pursuant to the said order, the assessing authority on April 12, 2001, had passed an order rejecting the claim for refund made by the petitioner. It is this very order, which has since been challenged in this writ petition.
Submission on behalf of the petitioners:
2. Learned counsel for the petitioners contends that since the order dated April 12, 2001, has been passed pursuant to the order dated January 22, 2001, in Writ Petition No. 107 of 2001, by this court, therefore, it is this court alone has the jurisdiction to deal with the said order. He secondly, contends that ex facie the order is so bad that no scrutiny of the order is necessary. On the face of it, it is wholly perverse. As such, this court should direct the matter to be remitted back for reconsideration to an officer higher than the Assessing Officer.
3. Learned counsel for the petitioners points out from the order dated April 12, 2001, that the officer concerned had proceeded wholly on the basis of surmises and conjectures without any relevance or reference to the records. He had not taken the pains of examining the records and had passed the order according to his whims and caprice. Such being the position, this court should interfere with the same.
Submission on behalf of the respondents:
4. Learned counsel for the respondents, on the other hand, points out that this court had no jurisdiction to that effect. The earlier order was simply an order for disposal of an application made at the earliest. The court had not dealt with the matter on the merits. As such, this court cannot assume jurisdiction in respect of the subject-matter, when it is subject to appeal and revision under Chapter XX of the Income-tax act, 1961. Relying on Section 246(l)(k) of the said Act, he points out that the order rejecting the claim of refund is appealable before the Deputy Commissioner of Income-tax (Appeals). As such, there being an alternative remedy, the writ jurisdiction cannot be invoked.
Reply on behalf of the petitioners :
5. In reply, learned counsel for the petitioners points out that in the prayer for refund the petitioner had claimed interest, which is governed under Section 214 of the 1961 Act. As such, the order, rejecting the claim of refund, which also includes interest, being a combined order cannot come under Section 246(l)(k) of the 1961 Act. Therefore, this court should remit back the matter to an officer higher than the assessing authority as specified in Section 246(l)(k) of the Act being the Deputy Commissioner of Income-tax (Appeals) to whom it should be remitted.
Can the order be brought within the purview of writ jurisdiction ?:
6. After hearing learned counsel for the respective parties, it appears that the petitioner had prayed for refund of some amount of tax paid in excess for the assessment years between 1971-72 till 1997-98. This court in the earlier writ petition had directed for the early disposal of such application. In fact, it had not entered into the merits and only invoked its jurisdiction to direct the authority under the 1961 Act to act according to the duties cast upon it and discharge its public function. In fact, this court did not entertain the writ petition on the question of the merits of the claim for refund or otherwise. Only on limited ground the said writ petition was entertained and certain orders were passed. Therefore, pursuant to the order dated January 22, 2001, passed in the earlier writ petition, the order dated April 12, 2001, cannot be brought within the purview of the jurisdiction of this court.
7. Be that as it may, even if the order appears ex facie bad or has been passed on surmises and conjectures, this court cannot assume jurisdiction in respect thereof, particularly, when the 1961 Act itself provides for adequate remedy and provisions for dealing with the same. The question is a question as to whether the order that was passed is good, bad or indifferent. Therefore, this court cannot assume jurisdiction in respect of a matter for which specific provision has been provided in the 1961 Act itself.
8. It is not that no writ can be maintained for the purpose of claiming refund. In case it is shown that the assessee is clearly entitled to get the refund of the specific amount, then only the writ jurisdiction can be invoked, that too at the discretion of the court. We may refer to K. L. Kochar and Co, v. STO and State of Kerala v. Aluminium Industries Ltd. [1965] 16 STC 689 (SC). Writ can be invoked in case the tax collected under a provision of law, which is ultra vires and the order is a nullity, which need not be quashed or set aside. In such a case writ jurisdiction can be exercised for compelling refund (State of M. P. v. Bhailal Bhai : [1964]6SCR261 and S. A. L. Narayana Row, CIT v. Model Mills Nagpur Ltd. : [1967]64ITR67(SC) ). But such relief cannot be granted if the person entitled to refund is guilty of unreasonable delay in approaching the court or where in the circumstances of a particular case, the court thinks that the exercise of its extraordinary writ jurisdiction is not proper, it may decline to interfere (Gita Devi Aggarwal v. CIT : [1970]76ITR496(SC) and Champalal Binani v. CIT : [1970]76ITR692(SC) ).
9. In this case the petitioner had included the claim for refund even for the period of 1972-73, thus, it seems the petitioner is guilty of delay in respect of the said period of assessment, in approaching this court. That apart, in the present case, the petitioner had resorted to Section 237 for refund and had suffered an order passed thereunder, which is otherwise appealable, as discussed hereafter, therefore, the petitioner cannot invoke writ jurisdiction for the same purpose, which he could have in an appeal provided under the Act.
What is the character of the order ?: How determined :
10. Section 237 of the 1961 Act provides for refund. Any order of refund that might be passed is definitely an order within the meaning of Section 237 of the Act. Even if it includes interest, the principal order being an order of refund, Section 214 of the Act cannot be attracted in order to give a different complexion to the orders so as to take it away from the scope of Section 237 of the Act. Inclusion of interest does not make the order of refund an order for payment of interest. In fact, the principal order is of refund, which might include interest on the amount to be refundable. Therefore, it is not a combined order but is an order, in effect and in letter and spirit, under Section 237 of the Act.
11. It is the substance of the order that determines the character of the order. The substance has to be determined on the basis of the order passed having regard to the context in which it is so passed. The principal object with which the order is passed, determines the character of the same. In this case, it was an order of refund whether it is advance tax paid in excess or any deduction made exceeding the tax determined or any interest that might have accrued on advance tax or any interest that might have accrued on the excess amount after deducting the tax, may be a component of the amount liable to be refunded. Any order directing refund of the principal or the interest, if any, would be an order of refund. Inasmuch as, it is the order of refund, which is the principal object that is attempted to be subserved by such order. Therefore, the character of the order would be determined by the principal object, namely, refund, even if it includes some other component, which might be refunded.
12. That apart, the interest that is claimed in this case is payable under Sections 243 and 244 of the 1961 Act. The scheme of the Act providing for refund under Chapter XIX having provided for refund under Section 237 had laid down the procedure and process and the scope and ambit of such refund in different situations and the manner in which it is to be refunded. It also provides for payment of interest in case of delay in the refund under Sections 243 and 244 respectively. Therefore, the amount of interest, which is payable either under Section 243 or under Section 244 while making the refund, if delayed, forms a component of the amount to be refunded. Such inclusion of interest does not have the effect of rendering a different complexion to the order of refund. The interest payable under Sections 243 and 244 is a component of the refund to be made under Section 237. The order of refund is made under Section 237 of the 1961 Act. Therefore, the contention raised by learned counsel for the petitioner to the extent that the order was not an order under Section 237, since interest was also claimed, cannot be sustained.
Scope and extent of appeal under Section 246(l)(k):
13. Section 246(l)(k) of the Act provides for an appeal against an order passed by an Assessing Officer before the Deputy Commissioner of Income-tax (Appeals) in respect of an order passed under Section 237 of the Act. Clause (k) confers the right of appeal on any assessee aggrieved by an order under Section 237, whether the order refuses refund or refunds less than the amount of refund claimed by the assessee. This right of appeal to an assessee is available, if he is aggrieved by any order in respect of refund of any amount, which the assessee claims to be excess of the tax properly chargeable from him under any of the provisions of the Act. Any order of the Assessing Officer savouring of this character is an order under Section 237 for the purpose of the right of appeal conferred on the assessee under this clause. In Smt. Shantibai v. CIT : [1984]148ITR49(MP) , it was held that an order refusing to refund the amount of tax adjusted by the assessee becoming refundable on the assessment being assessed at nil after an order passed by the Tribunal cancelling the regular assessment, was held, in substance, to be an order under Section 237 of the Act. In Sardar Bahadur Sardar Indra Singh Trust v. CIT : [1954]26ITR670(Cal) , it was held that an order declining to grant an assessee a refund of tax deducted at source, based on an exemption under Section 4(3)(i) of the 1922 Act, would also be appealable under Clause (k).
14. It is the substance of the order, which will determine as to whether it will come within the scope and ambit of Section 246(l)(k). An order passed under Section 236, which in substance is held to be identical, was also held to be an order of refund in substance. In CIT v. Tricky United Bank Ltd. : [1984]146ITR85(Mad) , it was held that though Section 236 does not provide for a refund application, the officer is bound to grant the refund after going into the question. An Assessing Officer is bound to pass orders on that application since the relief provided under Sections 236 and 237 in substance is identical. Thus, the 1961 Act provides for specific remedy by way of appeal before the Deputy Commissioner of Income-tax (Appeals), which can go into all the questions, which are now being raised before this court. In fact, the petitioners pray that this court should remit the matter to the Deputy Commissioner of Income-tax (Appeals). If it is so, the same can be had by the petitioner simply by filing an appeal before the said Deputy Commissioner of Income-tax (Appeals), for which no aid of this court is necessary. What the petitioner can directly do by preferring an appeal before the Deputy Commissioner of Income-tax (Appeals), for that he cannot seek aid of this court only to route the appeals through writ jurisdiction.
15. Such appeal is definitely an adequate alternative remedy. The question is a question of determination of certain facts relating to the amounts refundable. This court cannot undertake such an exercise, particularly in respect of matters, which are not related to law. The writ court exercises revisional jurisdiction, it does not examine as to how far the order is justified on facts. It can be examined only in appeal. This court cannot enter into such aspect of the matter.
Order :
16. In the circumstances, this writ petition cannot be maintained and is hereby dismissed. The petitioners shall be at liberty to prefer an appeal in accordance with law before the appropriate forum, as they may be advised.
17. After the above order is dictated, learned counsel for the petitioners, prays that let there be a direction upon the appellate authority to condone the delay. It is not necessary to pass any such order. The petitioners shall be at liberty to file an application for condonation of delay along with the appeal. If such application along with the appeal is filed, the appellate authority shall decide the same in accordance with law, according to its own wisdom and discretion.
18. There will, however, be no order as to costs.
19. All parties concerned are to act on a xerox signed copy of this dictated order on the usual undertaking.