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2016 (9) TMI 608 - GUJARAT HIGH COURTRefund of excess taxes paid - Condonation of delay - rectification of mistake - revision petition - Held that:- Even without the service of intimation, the petitioner had sufficient knowledge about the acceptance of return as far back as in May 2005. The first attempt to file revision petition, made in December 2008, was thus merely grossly belated. The only explanation that the petitioner offered was that since the intimation was served much later, there was no delay at all. However, if it was presumed that the limitation began to run from May 2005, what prevented the petitioner from filing the revision petition earlier, there is no explanation at all. The petitioner merely referred to the power of the Commissioner to condone the delay for good and sufficient cause being shown, but did not elaborate, in the present case, what such good and sufficient cause was. The Commissioner in our opinion therefore, committed no error in holding that the petitioner had failed to show sufficient cause for condoning the delay. As during the period when under subsection( 1) of section 143, the Assessing Officer had the power of making prima facie adjustments, the legislature provided for an explanation that an intimation sent to the assessee under subsection( 1) would be deemed to be an order for the purposes of section 264 with effect from 1.6.1999. Such explanation has been deleted giving a clear indication that such deeming fiction would no longer apply. In other words, as long as the Assessing Officer had the power to make prima facie adjustments while processing the returns of the assessee under section 143(1) of the Act, by a deeming fiction, it was considered as an order for the purpose of section 264 of the Act and, therefore, revisable. Once with amendment of section 143, such powers were rescinded, it was thereafter, no longer necessary to provide for any refund against a mere intimation under section 143(1) and a corresponding change was therefore, made by deleting the explanation and withdrawing the deeming fiction. We therefore, accept the view of the Commissioner that against the intimation under section 143(1) of the Act, the revision petition was not maintainable. In terms of section 154 of the Act, it may have been possible for the assessee to seek rectification of intimation under section 143(1) of the Act but when the assessee rather belatedly sought revision which was not maintainable, it cannot maintain the claim for refund dehors such proceedings. There is an additional reason why we cannot accept the stand of the petitioner and it is this. In the return filed, the assessee offered to tax a sum of ₹ 1.18 crores by putting a note that “The same has been disallowed and will be claimed when actual payment with necessary documents will be made as the company is still in the process of negotiating the same.” The claim of expenditure putforth by the Assessing Officer would be open to verification by Assessing Officer during the assessment before the same can be granted in terms of section 37 of the Act. If the assessee was following mercantile system of accounting, such claim could be processed on the basis of accrual. These aspects had to be examined before such claim could have been allowed. The assessee itself harbored an opinion that since the expenditure is still under the process of negotiation, the liability had not accrued during the previous year relevant to the assessment year 2003-2004. All these aspects had to be examined before it could be held that the claim of deduction of expenditure was required to be granted. This is therefore, not a case where an apparent clear cut error of airthematical, typographical or clerical nature has crept in which has robbed the assessee of a rightful claim. This is a case where the assessee wanted to shift its stand from the liability not having accrued to having crystalized. Not allowing refund under such circumstances would not shake the credibility of the department.
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