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2021 (2) TMI 763 - HC - Income TaxRefund claim on Fringe benefit tax value as per Section 115 WD(4) paid in excess - petitioner took the stand that the value of contribution to statutory pension fund cannot be considered as a perquisite and therefore, cannot be regarded as fringe benefit under the Income Tax Act - petitioner remembered that they had erroneously paid FBT for the year 2007-08 - request for refund rejected - Power and jurisdiction of the first respondent in entertaining the claim of refund - CIRCULAR 9/2015 [F.NO.312/22/2015-OT] states that any claim of refund exceeding ₹ 50.00 lakhs shall be considered by the Board - The learned standing counsel pointed out that this Court had invoked Section 119 of the Income Tax Act in favour of the petitioner. But then, the circular issued by the board circumscribes the power and jurisdiction of the first respondent in entertaining the claim of refund. The petitioner seeks refund to the tune of more than two crores. Therefore, according to him, if all all the claim could have been considered only by the Board not by the first respondent.this circular talks of an outer time limit for entertaining the refund application. When the circular states that a claim for refund will not be entertained beyond six years from the end of the assessment year for which the claim is made, that will have to be given a strict application. HELD THAT:- We find the contentions of the learned standing counsel to be sustainable - we are not in a position to interfere with the order impugned in the writ petition. Also note that the first respondent has not at all taken note of the spirit of my order dated 12.06.2019 - if the petitioner was not liable to be pay any fringe benefit tax, then, the department ought to have refunded the same. The income tax department being an arm of the State is bound by the constitutional mandate enshrined in Article 14 of the Constitution of India. In other words, the department is bound by the principles of fairness and reasonableness. As conscious that any taxing statute will have to be construed strictly and there is no scope for applying equitable principles. But the case on hand is not one of tax liability. As per the legal position that is presently prevailing, the petitioner was not at all liable to have made any payment of FBT in respect of contribution towards Superannuation Fund. In fact, the case on hand turns less on the maintainability of the claim for refund, but more on the lawfulness of the department in retaining the amount paid by the petitioner without any corresponding legal liability. The circular issued by the Central Board of Direct Taxes is no doubt binding on the authorities including the first respondent. But then, a constitutional court is not bound by such a circular. Section 119 of the Act also does not have any limitation. We permit the the petitioner to file an appropriate application before the Central Board of Direct Taxes. Since as on date there is absolutely no tax liability on the part of the petitioner herein, the said application will be entertained without reference to limitation. CBDT will pass orders on the petitioner's application thereon within a period of twelve weeks.
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