HINDUSTAN CONSTRUCTION CO. LTD. vs. INCOME TAX OFFICER (COMPANIES CIRCLE) BOMBAY & ANR.
What did the Supreme Court hold?
The Supreme Court held that while it is not necessary for there to be a prior adjudication before a claim can be allowed under Section 49E, and the Income-Tax Officer can determine the refund amount when an application is made, the claim for set-off must fail on another ground. The Court interpreted the phrase 'in lieu of payment' to mean that there must be a subsisting obligation on the Income-Tax Officer to pay the refund. In this case, the appellant's claim for refund had been rejected by final orders of the Commissioner and the Central Board of Revenue, which were not challenged. Consequently, there was no subsisting obligation on the Income-Tax Officer to make a payment to the appellant. Therefore, the conditions for set-off under Section 49E were not met. The Court agreed with the High Court's dismissal of the writ petition.
What were the facts?
The appellant, Hindustan Construction Co. Ltd., claimed a refund of income tax paid in an Indian State for assessment year 1949-50. The Income-Tax Officer rejected the claim as time-barred under Rule 5 of the Income-Tax (Double Taxation Relief) (Indian States) Rules, 1939. The Commissioner of Income-tax and the Central Board of Revenue upheld this decision. Subsequently, when the Income-Tax Officer raised tax demands, the appellant sought to set off the refund amount against these demands under Section 49E of the Indian Income-tax Act, 1922. This request was also rejected. The appellant then filed a writ petition in the High Court, which was dismissed. The High Court held that Section 49E required a prior adjudication finding the refund amount due, which was absent in this case. The appellant appealed to the Supreme Court.
What were the issues?
1. Whether, for the purpose of Section 49E of the Indian Income-tax Act, 1922, a prior adjudication is necessary to determine if a refund is due before a set-off can be claimed? 2. Whether the expression 'in lieu of payment' in Section 49E implies that there must be a subsisting obligation on the Income-Tax Officer to make a refund? Assessee's Arguments: Mr. Viswanatha Sastri, for the appellant, argued that a prior adjudication is not required under Section 49E, and the Income-Tax Officer can determine the refund amount when an application for set-off is made. He contended that the appellant was entitled to a refund under Rule 3 of the Indian States Rules, and the Income-Tax Officer only needed to calculate and set it off. He also argued that compliance with Rule 5 was physically impossible, and therefore, it did not apply, meaning the refund was still due. Revenue's Arguments: Mr. Ganapathi Iyer, for the respondent, contended that since the orders of the Commissioner and Central Board of Revenue rejecting the refund claim had become final, there was no obligation on the Income-Tax Officer to make any payment. He argued that a subsisting obligation to pay is a condition precedent for Section 49E to apply, as indicated by the phrase 'in lieu of payment'. He further argued that the refund was due under the Rules, not the Act, and therefore Section 49E was inapplicable.
Which sections of the Income-tax Act were involved?
Section 49E,Section 50,Section 33A,Section 29,Section 49A,Section 48,Section 59(5)
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
In absence of the assessment order being received by the Company it was not physically practicable for the assessee to lodge its claim 'for double income-tax relief and as such the time prescribed under Section 50 had already expired when the assessment order was received by the company." The Commissioner made some enquiries. The appellant, in its letter dated June 30, 1958, replied that no provisional claim for double income-tax relief was made by the appellant within the time prescribed. The appellant reiterated its own plea that it B was not "physically practicable" for th,e assessee to lodge its C claim for double-tax relief within the time prescribed. The Com- missioner, however, rejected the petition. He observed that "the assessment in the Kapurthala State was made on 20-3-1950, i.e., much before the assessment was completed by the Bombay Income-tax Officer. Nothing prevented the petitioner, therefore, from filing a provisional claim before the period of limitation was D over. At least, it should have made such a claim before the Income Tax Officer at the time of assessment. I regret I cannot condone the delay in filing the claim as there is no provision under Section 50 for such condonation." The appellant then approached the Central Board of Revenue. The Central Board of Revenue, by its letter dated December 31, 1958, declined to interfere in the E matter. The appellant did not take any steps to apply to the High Court under Art. 226 for quashing the above orders of the Com- missioner of Inocme-Tax or the Central Board of Revenue. On August 28, 1959, the Income-Tax Officer issued three notices of demand under s. 29 of the Act in respect of the Assess- 1 ment years 1949-50, 1950-51 and 1951-52. The appellant then wrote a letter dated September 4, 1959, requesting the Income- Tax Officer to set off the refunds to which the appellant was entitled pursuant to the provisions of Income-Tax (Double Taxation Relief) (Ceylon) Rules, 1942, and read with the provisions of ss. 49A and 48 of the Income-Tax Act, in respect G of the assessment years 1942-43, 1943-44 and 1944-45, relating to Ceylon, and the assessment year 1947-48 and 1949-50 relat- ing to Kolhapur and Kapurthala, against the said demands. In this letter the appellant gave arguments in support of its request. In short, the argument was that although the applications claim- ing those refunds were submitted beyond the prescribed time H limit, nevertheless the appellant had a right still, pursuant to the the provisions of s. 49E, to call upon the Income-Tax Officer to • IDNDUSTAN CONSTR. CO. v. I.T.O. (Sikri, /.) 417 A set off the refunds found to be due to the appellant against the tax demands raised by the Income-Tax Officer on the appellant. The appellant also approached the Central Board of Revenue, urging similar points. The Central Board of Revenue, however, by its letter dated June 24, 1960, declined to interfere in the matter. B The appellant then on October 7, 1960, filed a petition under Art. 226 of the Constitution. After giving the relevant facts and submissions, the appellant prayed that the High Court be pleased to issue a writ in the nature of Mandamus or a writ, direction or order under Art. 226 of the Constitution, directing C the respondents to set off the refunds due to the petitioner under the aforesaid double taxation relief rules against the tax payable by it for the assessment year 1955-56. It appears that in the mean- time the petitioner had paid tax for the assessment years 1949- 50 and 1950-51, and the demand for Rs. 89,000.58 for the ,o assessment year 1951-52 was kept in abeyance, .and later when the assessment for 1955-56 was completed, fue Income-Tax Officers had agreed to keep in abeyance Rs. 79,430.19 out of the total demand relating to the assessment year 1955-56, till the decision of the Central Board of Revenue. The second prayer was that the High Court be pleased to issue writs in the Ii: nature of Prohibition or other direction or order under Art. 226 of the Constitution prohibiting the respondents, their officers, servants and agents from demanding cir recovering from the petitioner the tax payable by it for the assessment year 1955- 56 without first setting off against that tax the refunds due to the petitioner under the aforesaid double tax relief rules. It will ·r be noticed that no prayer was made for quashing the order of the Commissioner, dated August 23, 1958, and the order of the Central Board of Revenue dated December 31, 1958. It was indeed contended by Mr. S. P. Mehta, the learned counsel for the appellant before the High Court that the appellant was not challenging the orders of the Income-Tax Officer rejecting his G application for refund, but was only challenging the orders made by them rejecting its application for grant of set off. Mr. Viswanatha Sastri, the learned counsel for the appellant first urged that as compliance with r. 5 of the Indian States Rules, 1939 was physically impossible, r. 5 did not apply, and H consequently ',the refund due to the appellant notwithstanding r.
But we cannot go into the question whether r. 5 was rightly or wrongly applied by the Income-Tax authorities. The HS SUPREME COURT REPORTS [1965] 2 S.C.R. orders dated August 23, 1958 and December 31, 1958, cannot A be attacked in these proceedings. Therefore, we must proceed on the basis that those orders were validly passed. We express no opinion whether the view of the Income-Tax authorities that r. 5 was applicable in the circumstances of the case was correct or not. This takes us to the construction of s. 49E. Section 49E reads thus: "49E. Power to set off amount of refunds against tax remaining payable.-Where under any of the provi- B sions of this Act, a refund is found to be due to any c person, the Income-tu Officer, Appellant Assistant Commissioner or Commissioner, as the case may be may, in lieu of payment of the refund, set off the amount to be refunded, or any part of that amount against the truc, interest or penalty if any, remaining payable by the person to whom the refund is due." D The High Court held that s. 49E of the Act did not give any assistance to the appellant because, according to it, there must be prior adjudication in favour of the appellant. The High Court observed that "the expression found to be due" clearly means that there must, prior to the date set off is claimed, be 'an E adjudication whereunder an amount is found due by way of refund to the person claiming set off." Mr. Sastri contends that it is not necessary that there should be a prior adjudication to enable a person to claim set off. He says that the Income-Tax Officer can decide the que,tion whether refund is due or not when an application for refund is made to him. On the facts, he 'ays that it is clear that the appellant is entitled to refund under r. 3 of Indian States Rules, 1939, and the Income-Tax Officer has only to c:llculate the relief due and then set it off. The learned counsel for the respondent, Mr. Ganapathi Iyer, on the other hand. contends that the orders of the Commissioner and the Central Board of Revenue having become final, there was no obligation on the Income-Tax Officer to make any payment of refund, and he says that it is a condition precedent to the applicability of s. 49E that the Income-Tax Officer mu<! be under an obligation to make a payment. He points out that the expression "in lieu of payment of the refund" clearly indicates that the Income-Tax Officer must be under an obligation to make a payment of refund. He further contends ,:_: .,_ ,_ F G H I·
IUNDUSTAN CONSTR.. CO. v. I.T.O. (Sikri, /.) 419' A that the refund is not due under the Act but under the said Rules,. and therefore, s. 49E does not apply. There is no difficulty in refuting the contention of the learned counsel for the Revenue that the refund, if due, was due under B the provisions of the Act. Section 59 ( 5) provides that the rules. made under this section shall have effect as if enacted under this Act. This provision thus makes the Indian State Rules, 1939. part of the Act, and consequently if a refund is due under the Rules, it would be refund due under the Act within the meaning of s. 49E. c The question then arises as to whether there should be a prior adjudication existing before a set off can be allowed under s. 49E, and whether there is any other condition which is neces- sary to be fulfilled before the section becomes applicable. We are of the opinion that it is not necessary that there should be a D prior adjudication before a claim can be allowed under s. 49E.. There is nothing to debar the Income-Tax Officer from detennin- ing the question whether a refund is due or not when an applica- tion is made to him under s. 49E. The words "is found" do not necessarily lead to the conclusion that there must be a prior adjudication. But this is not enough to sustain the claim of the E appellant. It must still show that a refund is due to it. The words "found to be due" in s. 49E may possibly cover a case where the· claim to refund has been held barred under r. 5 of the Indian State Rules but that this is not the correct meaning is made clear· by the expression "in lieu of payment". This expression, accord- F ing to us, connotes that payment is outstanding, i.e. that there is subsisting obligation on the Income-Tax Officer to pay. If a claim to refund is barred by a final order, it cannot be said that thert is a subsisting obligation to make a payment. The expression "in lieu or• was construed in Stubbs v. Director of Public Prose- cutions('). It was held there that where a liability has to be dis- G charged by A in lieu of B, there must be a binding obligation on B to do it before A can be charged with it. In our opinion, there must be a subsisting obligation to make the payment of refund before a person is entitled to claim a set off under s. 49E. In this case, in view of the orders of the Commissioner and the Central Board of Revenue mentioned above there was no subsisting obli- H gation to pay, and therefore, the claim of the appellant must fail. (1} 24 Q. II. D. 577
420 SUPRBMl! COURT REPORTS (1965] 2 S.C.ll. Therefore, agreeing with the High Court, we hold that s. 49E A of the Act is of no assistance to the appellant and that the peti- tion was rightly dismissed by the High Court. The appeal
accordingly fails and is dismissed, but in the circumstances of the case there will be no order as to costs. Appeal dismissed. B:
More judgments on Section 50
- Karnavati Rolling Mills Private Limited… vs The ITO, Ward-2(1)(1), AhmedabadITA 1714/AHD/2025[2018-19]Status: Disposed25 Sept 2026AY 2018-19
- Edwise International Prop Edwise… vs Deputy Commissioner of Income Tax Cirlce…ITA 4878/MUM/2025[2013-14]Status: Disposed22 Sept 2026AY 2013-14
- Mohammed Afzal & Bros, Ahmedabad vs Deputy Commissioner of Income Tax, Central…ITA 1159/AHD/2026[2022-23]Status: Disposed22 Sept 2026AY 2022-23
- Aquarius Transnational, Mumbai vs ITO-12(1)(1), Mumbai, Aayakar BhawanITA 5553/MUM/2026[2022-23]Status: Disposed18 Sept 2026AY 2022-23
- Sudesh Synthetic Mills Private Limited… vs DCIT, Circle-2(1)(2), SuratITA 739/SRT/2024[2016-17]Status: Disposed10 Sept 2026AY 2016-17
Recent GST High Court judgments
Search GST case law →- Giri Paints vs. The Assistant Commissioner (St)Madras · 15 Oct 2026
- Rahul Radheshyam Chauhan vs. Union Of INDIA Thru The Sec. Ministry Of Law And Justice And OrsBombay · 15 Oct 2026
- S.Murugesan vs. The Deputy Commercial Tax OfficerMadras · 15 Oct 2026
- Tvl. Annai Garden vs. The Commercial Tax Officer / The State Tax OfficerMadras · 15 Oct 2026
- Yadeshwar Mallekedi vs. The State Of TelanganaTelangana · 15 Oct 2026
