Prakash Krishna, J. - (1.) Raising a short controversy, claiming interest on the amount of refund due to the petitioner under 244 of the Income Tax Act (hereinafter called as the Act), the present writ petition has been filed. A writ of certiorari has also been claimed for quashing the order dated 9.11.1989, passed by the Commissioner of Income Tax, Allahabad by which the claim of the petitioner regarding interest on the refund amount has been denied.
(2.) Facts of the case lie in a narrow compass The officials of the Income Tax Department or) August 5, 1975 conducted search and seizure operation at the premises of the petitioner and seized the gold ornaments valuing Rs. 23,195/- as also Rs. 46006/- in cash. Pursuant thereto, the order under Section 132 (5) was passed on November 1, 1985. In the summary proceedings the authority concerned was of the view that the tax liability comes more than the value of the assets seized, consequently, it ordered retention of the assets seized by the Department, so that in the event of liability being created by the final order, the same may be paid of from the seized assets. However, in the regular assessment proceedings for the assessment years 1967-68 to 1976-77, the Income Tax Officer framed the assessment order against the petitioner and created the net liability to the tune of Rs. 14,946/- only for the aforesaid assessment years.. The gold ornaments thereafter were refunded to the petitioner, The cash worth Rs. 46,006/- which was seized and was lying with the department was refunded to the petitioner by means of cheque dated 5th May, 1980, after adjusting the demand created in pursuance of the aforesaid assessment orders. The petitioner laid the claim of interest for the excess amount which remained with the department and was-seized in the aforesaid search after i completion of the regular assessment orders and till date of the refund i.e. for the period 31st January, 1977 to 5th May, 1980, The petitioner laid claim of interest under Section 244 of the Act on the ground that the assessment order passed on 31st December, 1977 and the excels amount was refunded to him by' means of cheque dated 5.5.1980. The Commissioner of Income Tax by the impugned order dated 9th November, 1989 (filed as Annexure-3 to the writ petition) rejected the claim of the grant of interest on the ground that since "special provision has been made in the Act for dealing the seized' cash under Section 132(1) and also for payment of refund and interest under Section 132B general provisions under Section 244 are not applicable". The validity of this order has been questioned by means of present writ petition.
(3.) A counter affidavit has been filed by Sri Girdhari Lal, Income Tax Officer, Deoria, who has not disputed the factual position of the case and has stated vide para 3 that the petitioner was paid full interest of which he was entitled under Section 132B(4) of the Act, i.e. the interest for the period after expiry of six months from the date of the order under Section 132(5) of the Act to the date of regular assessment order. The stand taken in the counter affidavit is that in view of provisions of Section 132B(4) of the Act the applicability of Section 244 of the Act which is a general provision, stands excluded.;