TMI Blog2006 (3) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... irection the assessee paid Rs. 1.50 lakhs per month for 5 months starting from 19-10-2000. The aggregate amount so paid by February 2001 came to Rs. 7.50 lakhs. However, the challans by which the said payments were made specified the assessment year as 1997-98. Thus from these challans it is clear that the payments made pertained to assessment year 1997-98 instead of to the block period. Subsequently, the CIT(A), C-VI, Mumbai, vide order dated 14-3-2001 set aside order of block assessment and deleted the addition of Rs. 1,48,569. The remaining addition of Rs. 27 lakhs was restored to Assessing Officer for fresh adjudication after verification. The Assessing Officer, vide order dated 18-3-2003, assessed at "NIL" income. As a result thereof, the payment of Rs. 7.50 lakhs made by the assessee presumably against the demand for the block period became refundable. The Assessing Officer gave effect to the order of CIT(A) but did not give credit for Rs. 7.50 lakhs, as according to him, such payments were made for assessment year 1997-98 and not against block assessment. The assessee furnished an indemnity bond and applied to the Assessing Officer for refund vide letters dated 11-9-2003 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de under the directions of the Assessing Officer and, therefore, any amount of excess tax paid by the assessee is liable to be refunded. He further drew our attention to various papers in the Paper Book to point out that there was demand of tax pertaining to block assessment as well as assessment year 1997-98 and the Assessing Officer while granting instalments mentioned the subject as "Arrears of taxes for block period and for assessment year 1997-98 - reg.". In the order of instalments, it was not mentioned as to which instalment related to block period and which instalment related to assessment year 1997-98. The payment was composite for block assessment as well as assessment year 1997-98 but by mistake only assessment year 1997-98 was mentioned in the challans. Since the demand under the block assessment as well as regular assessment for assessment year 1997-98 had been deleted in appeal or in the order pursuant to the finding of the Learned CIT(A), the entire payment of Rs. 7.50 lakhs became due to the assessee, which must be refunded to the assessee under section 237 or 240 of the Act. It was contended by him that the appeal provisions should be construed liberally and the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee is appealable or not. 5. First we take up the issue regarding maintainability of the appeal before the Learned CIT(A). No doubt, there is no inherent right of appeal and the right of appeal can be exercised only where it is conferred by the statute, as held by the Hon'ble Supreme Court in the case of CIT v. Ashoka Engg. Co. [1992] 194 ITR 645. It is also the settled law that the provisions relating to appeal should be construed in a reasonable, practical and in a liberal manner, as held by the Hon'ble Supreme Court in the aforementioned case. The right of appeal against the orders of the Assessing Officer has been conferred upon the assessee by virtue of section 246A. Sub-section (1)(i) of this section provides that an order made under section 237 is appealable and the appeal would lie to CIT(A). There is no fetter on such right of appeal and, therefore, if the case of assessee falls within the scope of section 237, then the order of Assessing Officer would be appealable before the CIT(A). Section 239 of the Act on which reliance is placed by the revenue, does not provide any fetter on the aforesaid right of appeal of the assessee. Sub-clause (c) of section 239(2) only provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the expiry of one year from the end of the assessment year. Such refunds would fall under section 240 of the Act. Though section 239 refers to every claim for refund under the Chapter which includes refund under section 240 also but, in our opinion, refund under section 240 cannot be considered under section 239 for two reasons - (I) the appeal effect is practically and usually given after the expiry of one year from the end of assessment year and (ii) no claim is required to be made by assessee and it is the duty of Assessing Officer to allow refund to assessee. So, the limitation period provided in clause (c) of section 239(2) cannot be applied where refund is to be allowed under section 240 of the Act. Since such provisions should be construed in a reasonable, practical and in a liberal manner, we are of the view that the limitation period in the aforesaid section can be applied only where the refund becomes due to the assessee before the expiry of one year from the end of relevant assessment year. For example, Advance Tax and amount of TDS may exceed the liability to pay tax on his total income and assessee may like to claim refund even before completion of assessment. In su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1,59,502. This shows that the assessment order was passed after the expiry of one year from the date of assessment year. At that time, there was another demand of Rs. 19,99,689 arising from the, block assessment order dated 29-2-2000. The assessee had represented before the Assessing Officer for stay of demand and the DCIT ordered to pay 50 per cent of the demand relating to block assessment and assessment year 1997-98 by paying instalment of Rs. 2 lakhs per month from October, 2002. In partial compliance of the said order, the assessee had paid monthly instalment of Rs. 1.50 lakhs commencing from October 2002. The total amount paid to the assessee was Rs. 7.50 lakhs by the end of February, 2001. The additions in the block assessment were deleted by virtue of appellate order dated 14-3-2001 and pursuant to the order giving effect to the appellate order which was passed by Assessing Officer on 18-3-2003. This has resulted in refund of Rs. 7.50 lakhs. The Learned CIT(A) has agreed in his order that assessment year 1997-98 was wrongly mentioned by mistake but the payment still related to assessment year 1997-98. Be that as it may, it is clear from the record that the payment itself ..... 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