TMI Blog2012 (10) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... itlement to get refund in terms of Section 237 of the Income Tax Act, the Assessing Officer is directed to grant refund immediately along with interest in accordance with law - writ petition is disposed of. - W.P. (C) No. 27345 of 2011 - - - Dated:- 31-8-2012 - V. Gopala Gowda and B.N. Mahapatra, JJ. B. Panda and B.B. Sahu for the Petitioner. A.K. Mohapatra for the Respondent. JUDGMENT B.N. Mahapatra, J . This writ petition has been filed with a prayer to direct opp. party no.1-Income Tax Officer, Ward-2(2) Cuttack and opp. party no.2-Addl. Commissioner of Income Tax, Range-2, Cuttack for issuance of refund voucher in favour of the petitioner at the earliest with interest @12% per annum on the ground that the action of opp. party nos.1 and 2 are contrary to the provisions of the statute. 2. The petitioner's case in a nutshell is that the petitioner filed its return of income on 01.09.2003 for the assessment year 2003-04 claiming refund of Rs.1,70,691/-. The total tax payable in respect of the income disclosed in the return was Rs.1,14,800/- as against which the tax of Rs.2,15,491/- was deducted at source and advance tax amounting to Rs.70,000/- was pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er affidavit filed by opp. party nos.1 to 3 submitted that the claim of the petitioner for refund is barred by time and it is not maintainable. The allegation of the petitioner regarding any apparent inaction and recalcitrant attitude of the Income Tax Authorities relating to non-issue of the refunds claimed for the assessment year 2003-04 amounting to Rs. 1,70,691/- is totally baseless. From the annexures appended to the writ petition, it is found that on behalf of the petitioner for the first time a letter was addressed to the Addl. CIT, Range-2, Cuttack on 16.07.2008 received in the office on 18.07.2008 claiming that the refund for Rs.1,70,691/- was not received by the assessee till 16.07.2008. Under the provisions of the Income Tax Statute, a return of income filed for the assessment year 2003-04 has to be processed under Section 143(1) of the Income Tax Act, 1961 by March, 2005. As per the existing administrative regulation, any refund claimed which is found lawfully payable by the Income Tax Department to the tax payers exceeds Rs.1 lakh, it has to be approved by the Range Officer before the refund amount is paid to the assessee. From the registers and records available in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner did not furnish any clarifications called for by the Assessing Officer. It is further submitted that the Assessing Officer had reasons to believe that interest income and contract receipts were not disclosed in the return filed for which a noting was made in the records for issue of notice under Section 148 of the Income Tax Act, 1961. However, there is no evidence available on records regarding actual service of the notice under Section 148 of the Income Tax Act, 1961 on the assessee except the service of letter dated 1.6.2004 on the petitioner on 1.7.2004. It was submitted that since the assessee having not complied with clarifications called for by the Assessing Officer as per letter served on 1.7.2004 prima facie the assessee was not entitled to any credit of TDS on the ground that corresponding income of Rs. 11,01,577/- towards interest income and contract receipts of Rs. 1,57,531/- had not been disclosed in the P L Account. In other words, the TDS amount of Rs. 1,15,667/- from such interest income and TDS from contract receipts of Rs. 3,310/- were not prima facie admissible. 6. Mr. Mohapatra further submitted that the petitioner has an alternative efficacio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an alternative efficacious remedial measure available right now to produce relevant reconciliation of gross receipts from interest income/from contract works/from commission as per TDS certificate with the figure shown in P L Account for the financial year 2003-04 and after submission of such clarification/supporting documents it can be ascertained about petitioner's entitlement to get the amount of refund on the basis of TDS certificate. 10. Section 237 of the Income Tax Act speaks about refund. The said Section reads thus:- "If any person satisfies the [Assessing] Officer that the amount of tax paid by him or on his behalf or treated as paid by him or on his behalf for any assessment year exceeds the amount with which he is properly chargeable under this Act for that year, he shall be entitled to a refund of the excess." Plain reading of this Section makes it clear that a person is entitled to claim refund of tax, if the tax paid by him or on his behalf for any assessment year exceeds the tax which he is liable to pay for that assessment year. Section 237 further stipulates that only if any person satisfies the assessing officer that he is entitled to a refund then such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equested to furnish the details of interest income and contract receipts. But nothing has been heard so far. You are once again requested to furnish the details within three days from the date of receipt of this letter, failing which report as deemed appropriate will be submitted to the Joint Commissioner of Income Tax, Range - 2, Cuttack. Yours faithfully, Sd/- (U.C. Satpathy) Income Tax Officer, Ward-2(2), Cuttack." 13. Opp. parties in paragraph 7 of their counter affidavit stated that the said letter was received by M/s.Santuka Agencies, Dolamundai, Cuttack on 1.7.2004. There is no material evidence on record to show that the assessee had produced any reconciliation statement of interest and contractual receipts as per TDS certificate compared to turnover credited in the P L Account as per the audited statement. No rejoinder was filed by the petitioner denying the facts stated in paragraph 7 of the counter affidavit. 14. In view of the provisions of Section 237 of the Income Tax Act and averments made in paragraphs 6 and 7 of the counter affidavit, it cannot be said that there is any laches on the part of opp. parties-Department in not granting refund to the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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