TMI Blog2014 (9) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the amount, which claim is barred - assessee proceeded to opt for the KVSS, 1998 and paid the tax as determined to conclude the lis between the assessee and the department - it will not lie in the mouth of the assessee to turn around and claim refund referring to earlier assessment years - in terms of Section 93 of the KVSS, 1998, the assessee cannot seek refund of amount paid under the KVSS, 1998 – Decided against assessee. Revision u/s 263 – Requirement to fulfill conditions – Held that:- As it has been already held that u/s 93 of the KVSS, 1998, the assessee cannot seek refund of amount voluntarily paid under the KVSS, 1998, the order passed u/s 154 of the Act by the AO is erroneous and prejudicial to the interest of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a rectification petition in terms of Section 154 of the Income Tax Act (for brevity, the Act ) for the assessment year 1994-1995 and an order came to be passed by the Joint Commissioner of Income Tax, Special Range-I, Coimbatore, on 20.4.2000, determining the total income at ₹ 2,61,46,290/- and the tax payable thereon was determined after adding all statutory claims at ₹ 37,40,256/-. At this juncture, it was noticed by the Joint Commissioner of Income Tax, Special Range-I, Coimbatore that on self-assessment under Section 140A of the Act, an higher amount of ₹ 77,58,956/- was paid by the assessee and, therefore, there was an excess payment of tax of ₹ 40,18,700/-. It was also noted that there are other earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also perused the material available on record. Admittedly, the assessee has filed the declaration under KVS Scheme 1998 and the Designated Authority has determined the tax payable. As determined by the Designated Authority, the assessee has also paid the taxes. In consequence to allowance of additional depreciation, the income returned by the assessee in the regular return was reduced considerably, therefore, there was refund of taxes already paid. In that process, the Assessing Officer refunded the tax paid under Section 140A, self assessment tax and also the taxes paid under KVS Scheme, 1998. The only objection of the Revenue is that the tax paid under KVS Scheme 1998 cannot be refunded under any circumstances. The assessee's content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reature under the Income Tax Act. Therefore, this Tribunal has no power to examine the constitutional validity or otherwise of Sec.93 of KVS Scheme 1998. Therefore, we are unable to accept the contention of the assessee. 2.5. Aggrieved by the said order passed by the Tribunal, the assessee has filed this appeal and the same was admitted on the following substantial questions of law: 1. Whether on the facts and in the circumstances of the case the Tribunal was right in law in holding that the Assessment Order was erroneous and prejudicial to the interest of the revenue and therefore these twin conditions required for invoking power u/s 263 are satisfied? 2. Whether on the facts and in the circumstances of the case the Tribunal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration is made, the Designated Authority shall determine the tax payable and intimate the same to the assessee. The assessee, if he accepts the order, is liable to pay the tax voluntarily. If, however, the assessee makes payment in terms of the order of the Designated Authority under Section 90 of the KVSS, 1998, the amount shall not be refundable under any circumstances as stated in Section 93 of KVSS, 1998, which reads as under: Section 93. No refund of amount paid under the Scheme. Any amount paid in pursuance of a declaration made under Section 88 shall not be refundable under any circumstances. 3.4. Once an assessee voluntarily invokes the KVSS, 1998 and had paid the tax liability in terms of the provisions of the KVSS, 1998 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, the assessee cannot seek refund of amount voluntarily paid under the KVSS, 1998, the order passed under Section 154 of the Act by the assessing officer, in our considered opinion, is erroneous and prejudicial to the interest of the Revenue. The twin conditions stipulated under Section 263 of the Act for invocation of said provision by the Commissioner are fulfilled in the case on hand, as the order of the Assessing Officer is erroneous and prejudicial to the interests of the Revenue, as it runs counter to Section 93 of the KVSS, 1998. 4.2. In such view of the matter, the first substantial question of law is answered against the assessee and in favour of the Revenue. For the foregoing reasons, this appeal is dismissed. No costs. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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