ADARSH KUMAR GOEL, J. - (1.) THIS appeal has been preferred by the Revenue under S. 260A of the IT Act, 1961 against order dt. 30th Dec., 2002 passed by the Tribunal, Amritsar Bench, Amritsar in ITA No. 584/Asr/1996, for the asst. yr. 1981-82, claiming following substantial question of law : "(i) Whether, on the circumstances of the case, the learned Tribunal is right in law in concurring with the order passed by the learned CIT(A) by placing reliance on the case of Deep Chand Jain vs. ITO and Ors. (1984) 41 CTR (P&H) 149 : (1984) 145 ITR 676 (P&H) when the assessment order annulled by the learned Tribunal was revived by the Hon'ble Punjab and Haryana High Court vide their judgment dt. 1st Oct., 1997 passed in IT Ref. No. 121 of 1996 in the assessee's case ? (ii) Whether, on the circumstances of the case, the learned Tribunal was right in law in allowing interest under S. 214/244(1A) of the IT Act, 1961, when as a result of revival of assessment order annulled by the learned Tribunal, the assessee was not entitled for any refund ?".
(2.) THE assessee filed its return declaring loss but the AO made additions and made assessment on net income of the assessee under S. 143/144B. The assessment was upheld by the CIT(A) except for setting aside part of the addition. The Tribunal initially held that the assessment was barred by limitation but this Court on reference, reversed the said view and held the assessment to be valid. Accordingly, the assessment was restored and the amount refunded in pursuance of order of the Tribunal was sought to be recovered with interest under S. 214 r/w S. 244(1A) while giving appeal effect to the order passed by this Court. In the said proceedings, the Tribunal upheld the objection of the assessee and held the recovery to the illegal. The finding recorded is as under : "It is also true that the AO in compliance to the order of the Tribunal dt. 28th Oct., 1994 (supra) refunded the tax paid by the assessee but denied the interest on the aforesaid refund. The Hon'ble jurisdictional High Court in the case of Deep Chand Jain vs. ITO (supra), held that the advance-tax collected from the petitioner had to be related to a final assessment order and since no final assessment order could be passed, the same having become barred by limitation, the collection of the advance-tax itself become illegal and so also its detention. It has been further held that the tax deposited by the petitioner was in the nature of advance-tax and, therefore, it would bear simple interest under S. 214 of the Act which as then prescribed was 12 percent per annum till the date of refund. In our view, the ratio laid down by the Hon'ble jurisdictional High Court in the case of Deep Chand Jain vs. ITO (supra) is squarely applicable to the facts of the present case. In that view of the matter, we do not see any infirmity in the order of the learned CIT(A)." We have heard learned counsel for the parties.
(3.) LEARNED counsel for the Revenue submits that judgment of this Court in Deep Chand Jain vs. ITO (supra) was distinguishable as therein demand was set aside on the ground that no assessment had been made. In the present case the assessment was upheld by this Court. Ignoring order of this Court, it has been held that the assessment was barred by limitation. Thus, the Tribunal erred in holding the recovery to be illegal.;