JUDGMENT
1. The present writ petition raises an interesting question. The petitioner was a minor at the relevant time and was being assessed to income-tax for his share in the partnership firm. His father was also a partner in the said firm. By the Taxation Laws (Amendment) Act, 1975, by its Section 13 of the Amending Act made effective from April 1, 1976, provisions of Section 64(3) were inserted in the Income-tax Act, 1961. The said provision provided that if a minor is admitted to the benefits of partnership, income falling to his share will be liable to be assessed in the hands of either parent whoever has the higher income. Though not obliged after the amendment of Section 64(3) of the Act, the petitioner filed his return of income and showed his share income from Bhagat Ram Jai Narayan as income taxable in the hands of the minor and it was shown in paragraph 3 of the return. On the basis of the said return of income, the assessment was made by the assessing authority on January 27, 1979, showing the total income of the minor at Rs. 57,040. In the said order, it was stated that the said assessment was a protective assessment though notices of demand and challan were issued and it was stated that the penal interest was chargeable under different sections. Subsequently, however, the said protective assessment was cancelled and the income of the petitioner was added to the income of the father and he was assessed accordingly. In the mean-
time, however, the petitioner-assessee had deposited the advance tax under the provisions of Section 210 read with Section 211 of the Income-tax Act.
2. The petitioner now contends that since the petitioner's assessment was made by an order dated November 17, 1979, the petitioner was entitled to refund of the advance tax as also the interest under the provisions of Section 214 of the Act.
3. Mr. Shambhu Chopra, arguing on behalf of the Department, has submitted that no interest is payable to the assessee unless the amount found due exceeds the amount of assessed tax in a regular assessment. Secondly, he argues that initially, interest was levied on the father who was assessed finally on the income of the minor for short payment of advance tax. Subsequently, the said short payment was waived by the Commissioner. On the facts it is clear that such short payment was on account of non-deposit of advance tax payable on the income of the minor. Since the Department has waived the interest payable by the father on the income of the son, it would be unfair to allow interest on the ground of advance tax paid and adjusted subsequently towards the income of the father.
4. Mr. Vikram Gulati submits that the order passed by the Inspecting Assistant Commissioner waiving the interest payable by the father was on the ground that the father had made payment of advance tax prior to the issue of notice under Section 210 of the Income-tax Act and not on the ground that the assessed income and tax entries due to inclusion of share income of minor not because there was any concealment in the assessment of the taxable income as shown in the assessment. Mr. Gulati further submits that the Assessing Officer himself has treated the protective assessment as regular assessment in his order dated May 6, 1981, and has held that the demand raised in the order dated January 27, 1979, was declared nil by the order dated November 17, 1979, passed under Section 154 of the Income-tax Act. As such, according to the petitioner, the assessee is entitled to the refund under the provisions of Section 214.
5. Looking at the provisions of Section 214 of the Act, it appears that the said provisions are enabling provisions entitling the assessee to get interest at the particular rate if the amount of instalments paid by the assessee exceeds the amount of assessed tax from the first day till the next day of the financial year (sic). The said provisions speak of the period for which the amount is refundable and for the said purpose the word "regular assessment" is incorporated. In the said provision it is nowhere provided that the interest will not be payable unless the regular assessment has been made. If the amount becomes refundable otherwise, as in the instant case, there is no justification for withholding the refund of the said interest amount to the assessee. In my view of the matter, the petitioner is clearly entitled to interest under Section 214 if the interest charged on the father was not waived by the authorities. Since the authorities have waived the interest charged from the father on the advance tax paid by his son and for non-payment of advance tax payable by the father, I think equity demands that no order be made on this petition and the same stands dismissed. There shall be no order as to costs.