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2016 (11) TMI 1014 - DELHI HIGH COURTClaim of refund of tax paid earlier since the return was treated as Invalid by the AO - delay in rectification of return u/s 139(9) - After declaring the above return of income as invalid return, the revenue invoking coercive action for recovery of the tax and interest - attachment orders - Held that:- This court is of opinion that the reliance on the Karnataka High Court ruling in K. Nagesh (2015 (6) TMI 217 - KARNATAKA HIGH COURT ) for saying that the amounts paid as advance tax are in fact refundable, because of Section 139 (9) read with Section 240 is inapt. That court, with respect, appears to have overlooked the salient aspect underscored by the Supreme Court, i.e., the levy of tax is under Section 4 (1); the rates may vary. Likewise, filing of return, self-assessment tax, advance tax, etc. and provisions which flesh out the mechanisms under the Act for collection cannot be construed literally. Even Section 240 presupposes an order, leading to refund. Now, it is moot whether the nullification on ground of non-compliance due- not due to denial of liability - but other reasons, automatically leads to a situation contended by the assesseee. Facially, the contention is insubstantial, because Section 139, even while obliging the officer to a course of action, i.e., declaring the return invalid, also says significantly that “and the provisions of this Act shall apply as if the assessee had failed to furnish the return.” Furthermore, as clarified by the Supreme Court, Section 240 itself is premised upon some authority of the revenue officials to decide whether the entire amount deposited, or part of it, or none at all, is to be refunded. Besides the above conclusion, this court is also of the view that the assessment is at large, given that the search resulted in a notice to the assessee under Section 153A. No doubt, it has claimed refund; yet those issues are to be adjudicated. Therefore, its claim cannot succeed.
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