TMI Blog2014 (12) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... action appears to have been taken by the AO on the ground that the return itself was never received in the office - in cases covered by Sections 237 to 245, the correctness of an assessment cannot be gone into by the officer concerned while determining the issue as to whether refund is due to the assessee or not - It follows that the procedure can be followed only in cases where there is already an assessment and the assessee approaches the Department for a refund that is due to him in terms of the assessment order. What is to be done with regard to the excess payments made by the assessee, by way of advance tax for the AY in question – Held that:- The payments were in fact made, which is not disputed by the Department, and the payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporation. When, despite the filing of the return showing the amount of ₹ 18,65,376/- as due to the petitioner by way of refund, no steps were taken by the respondents to refund the said amount, the petitioner by Ext.P4 representation dated 20-4-2007 requested the respondents to sanction the refund. It would appear that, pursuant to the said representation, the first respondent by Ext.P5 communication dated 21-6-2007, called for the original acknowledgment that was issued in connection with the filing of the return. Under cover of Ext.P6 letter dated 4-7-2007, the petitioner produced the original of the acknowledgment before the first respondent. Thereafter, a reminder was sent on 23-08-2007, a copy of which is produced as Ext.P7 in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner, while seeking a refund of the advance tax paid, lies in resorting to the procedure under Sections 237 to 245 of the Income Tax Act, and not by approaching the Writ Court in proceedings under Article 226 of the Constitution of India. 3. I heard Sri. Vikram Ramakrishnan, learned counsel appearing on behalf petitioner and Sri. Jose Joseph, the learned Standing counsel for the respondents . 4. On a consideration of the facts and circumstances of the case and also the submissions made across the Bar, I find that in the instant case, the petitioner had filed a return before the Income Tax Officer, Range-II, Trivandrum on 31st August, 2000. In Ext. P2 acknowledgment, that is filed along with the Writ Petition, there is a seal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 143 (3) of the Income Tax Act. The provisions of the Act do not envisage a situation where the assessing officer can ignore, or refuse to act upon, a return received by him. In the instant case, where the return indicated that a refund was due to the petitioner on account of advance taxes paid by him, which were not actually payable in so far as the receipt in question was a capital receipt that was not liable to tax under the Income Tax Act, the Assessing Officer ought to have dealt with the return and determined whether the refund claimed in the return was actually payable to the assessee or not. In the instant case, no such action appears to have been taken by the Assessing officer on the ground that the return itself was nev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuation does not arise. 5. The upshot of the aforesaid discussion is that while on the one hand, the petitioner has effected payments of advance tax in respect of a receipt that was not taxable in his hands and the Department has accepted the said payment of tax without demur, the assessing officer, on the other hand, did not choose to act upon the return filed by the assessee claiming refund of the excess tax paid and further, even assuming that the assessee had not filed any return, did not choose to proceed against the petitioner, as an assessee in default, for the particular year. It must also be noticed that, while it was open to the petitioner to approach the Department for refund of the amounts paid in excess, immediately after th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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