TMI Blog2023 (5) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by it relatable to the impugned income exempt under section 11 of the Act. Needless to say that Article 265 of the Constitution mandates that no tax shall be levied or collected except by authority of law. If tax has been paid in excess, same has to be refunded to the assessee. Accordingly, we set aside the order of the CIT(A) in so far it relates to the issue of denial of refund of tax paid on the returned income and direct the Ld. AO to grant refund in accordance with law.Appeal of the assessee is allowed. - ITA No. 1584/Del/2017 - - - Dated:- 6-4-2023 - Shri G.S. Pannu, Hon ble President And Ms. Astha Chandra, Judicial Member For the Assessee : Shri Saten Sethi, Advocate For the Department : Shri Umesh Takiyar, Sr. DR, Shri Sumit Kumar Verma, Sr. DR ORDER PER ASTHA CHANDRA The appeal of the assessee arises out of the order dated 01.02.2017 of the Ld. Commissioner of Income Tax (Appeals)- 40, Delhi ( CIT(A) ) pertaining to the assessment year ( AY ) 2012-13. 2. The assessee has taken the following grounds:- 1. That on the facts and circumstances of the case, the Commissioner of Income tax, (Appeals)-40, New Delhi [ the CIT(A)] hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11 along with consequential benefits. However, in para 4.2.4 (page 18) of his order, in view of decision of Hon ble Supreme Court in CIT vs. Shelly Products Another 261 ITR 367 (SC) the Ld. CIT(A) held that since the assessee paid tax on the impugned income of Rs. 99,97,872/- declared in the return, tax paid thereon will not be refunded even though the said income is eligible for exemption under section 11 of the Act. 5. The assessee is aggrieved by the above finding of the Ld. CIT(A) and is in appeal before the Tribunal. All the grounds of appeal of the assessee relate thereto. 6. At the very outset the Ld. AR submitted that the Ld. CIT(A) misunderstood the decision of Hon ble Supreme Court in Shelly Products Another (supra) which has no applicability and in fact, it supports the case of the assessee. In Shelly Products Another (supra) the assesee had admitted their liability to pay tax paid by them. They had not contended that the tax of which refund is claimed was not chargeable or payable. They claimed refund on the sole ground of the failure of the authorities to pass an order of assessment. The Ld. AR argued that it was in the backdrop of the above factual matri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT(A) eloquently says so that the income from unrecognized courses amounting to Rs. 99,97,872/- has been declared in the return (for AY 2012- 13) on which tax has also been paid. It is also not disputed by the Ld. CIT(A) and in fact following the order dated 15.02.2016 of the Hon ble Tribunal in ITA No. 1019/Del/2015 and the decision dated 02.08.2016 of the Hon ble Delhi High Court in ITA No. 509/2016 for AY 2009-10 in the assessee s own case, he has directed the Ld. AO to grant exemption under section 11 along with consequential benefits. Having held so, the Ld. CIT(A) denied the assessee refund of tax paid on the said income declared by the assessee in its return filed on 27.09.2012 solely on the basis of Hon ble Supreme Court s decision in Shelly Products Another (supra). 7.1 To say the least the Ld. CIT(A) misapplied the decision (supra) of the Hon ble Supreme Court to the facts of the assessee s case in which facts were altogether different. In Shelly Products Another (supra) the facts were that the assessee, after having paid the advance tax filed its return for AY 1976-77. The AO framed assessment under section 143(3) r.w.s 144B of the Act. The CIT(A) partly allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... education within the meaning of the expression charitable purpose defined under section 2(15) of the Act and income from such activity was exempt under section 11. The assessee society never admitted its tax liability relatable to the said income. It has been contesting the addition of the said income to its total income on the ground that tax was not chargeable or payable by it in respect of such income. On the contrary the Revenue has been holding year after year right from the AY 2009-10 that the impugned income does not fall within the ambit of education and thus charitable purpose under section 2(15) of the Act. It is only at the stage of the Tribunal that the assessee got relief when its appeal for the AY 2009-10 was decided in its favour vide the Tribunal s decision dated 15.02.2016 in ITA No. 1019/Del/2013. 7.6 Till then i.e. 15.02.2016 the assessee s appeals for AY 2009-10 and subsequent AYs 2010-11 and 2011-12 were still pending for decision before the Tribunal. It was in such a precarious situation that the assessee society in its return for AY 2012-13 filed on 27.09.2012 declared the said income and paid taxes thereon, though retaining its claim of exemption of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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