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2016 (12) TMI 1288 - HC - Income TaxRevision before the Commissioner u/s 264 against in intimation u/s 143(1) - Refund - Exemption of income u/s 10(8) claimed - whether there was no assignment of duties as such in terms of section 10(8) and that under the Agreement between the United States of America and the Indian government there was no specific exemption of salary from tax, therefore, as the prerequisites mentioned in section 10 (8) are not satisfied, the petitioner was held to be disentitled to the claim raised? - Held that:- The return was processed under section 143(1) of the Act 1961, thereafter the assessee was advised that the income which had been taxed was in fact exempt under Section 10(8) of the Act, therefore, she filed a revision petition under Section 264 which has been dismissed, although for different reasons, but now before the writ court the same argument is being raised on behalf of the Department, as had been raised before the Jammu & Kashmir High Court. In view of the above discussion the contention of Shri Mishra, as noted hereinabove, have no legal basis and are accordingly rejected. In the Delhi High Court judgement in Vijay Gupta's case (2016 (3) TMI 977 - DELHI HIGH COURT ) this plea was specifically raised, but repelled by observing that the use of the expression 'any order' under section 264 would imply that the section does not limit the power to correct the errors committed by the subordinate authorities, but could even be exercised where the errors are committed by assessees. It would even cover the situations where the assessee, because of an error, has not put forth a legitimate claim at the time of filing the return and the error is subsequently discovered and is raised for the first time in an application under section 264. The Delhi High Court held that the intimation under Section 143(1) is regarded as an 'order' for the purposes of Section 264 of the Act. In view of the above, the remuneration paid by the AVSC to the assessee- petitioner was clearly exempt under section 10(8) of the Act 1961 and as the exemption had not been claimed in the income tax return for the assessment year 1998-99, 1999-00 and 2000-01 erroneously and in ignorance of the legal provision, the same is liable to be refunded. The plea raised by Shri Mishra based on Section 297 etc. is nothing but a technicality, which cannot be allowed to come in the way of refund of an amount which otherwise was not taxable under the Act 1961, in view of Article 265 of the Constitution of India, and the reasons mentioned hereinabove as also section 240 of the Act 1961. In this context it is also relevant to mention that the revisional authority has not dismissed the revision petition on the ground that it is not maintainable, therefore, the objections raised in this regard by Sri Mishra are not tenable for this reason also. In fact the revisional authority has consciously condoned the delay in filing the revision and has decided the same on merits, al beit, on a misreading and misconstruction of the provisions of law as also the documents on record. It is not out of place to mention that in similar circumstances the Commissioner (Appeals) has allowed a similar claim for refund for duties assigned to one Sri B P Singh in connection with the same agreement and the same employer i.e. AVSC. A copy of the judgement passed in the appeal is annexed as Annexure-8 to the writ petition, therefore, for this reason also there was no occasion for the revisional authority to take a different view in the matter. The order of the Commissioner passed under section 264 is accordingly quashed. As the petitioner has been litigating since the year 2003 i.e. for past 13 years, there is no justification for remanding the matter back to the revisional authority, as it would only perpetuate her agony, especially as this court has already recorded the reasons hereinabove entitling her to the relief claimed, therefore, the assessing authority or whosoever is competent in this regard is directed to refund the amount of tax deducted from source by the employer from the petitioner's remuneration for the assessment years 1998-99, 1999-00 and 2000-01 with interest at the rate of 6% per annum after modifying the intimation under section 143(1), if necessary.
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