TMI Blog2005 (5) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 23-5-2005 - Judge(s) : R. K. AGRAWAL., RAJES KUMAR. JUDGMENT The judgment of the court was delivered by Rajes Kumar J.-The Income-tax Appellate Tribunal has referred the following question of law under section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), for the assessment year 1989-90 for opinion to this court: "1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in directing the Assessing Officer to refund the advance tax paid by the assessee, pursuant to the assessment order made under section 143(3)/148 dated November 29, 1991?" The brief facts of the case are as follows: The assessee/opposite party (hereinafter referred to as "the assessee" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vance tax paid by the assessee. The various judgments relied upon by the assessee clearly support the assessee's contention that the mention of expression like 'proceedings dropped' and 'proceedings filed' would amount to completion of assessment. Once, the notice under section 148 was issued and the proceedings of hearing were conducted thereafter, the provisions of the Income-tax Act, so far as, may be applied accordingly as if such return were a return required to be furnished under section 139. This is clear from a reading of the plain language of section 148 of the Income-tax Act, 1961. Even otherwise, the assessee could claim a refund under section 237 read with section 239 within a period of 2 years prescribed in section 239 of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding counsel submitted that in the present case, the assessee is not entitled for refund because no assessment was made and the amount deposited was by way of advance tax. In support of his contention, he relied upon the decision of the apex court in the case of CIT v. Shelly Products [2003] 261 ITR 367 (SC). We do not agree with the submissions of learned standing counsel. In the present case, in the return filed in pursuance of a notice under section 148 of the Act, the assessee has not admitted any liability of tax and refund of the amount which was deposited by way of advance tax, was claimed. In the case of CIT v. Shelly Products [2003] 261 ITR 367, the apex court held that the assessee was not entitled to claim the refund of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings under section 148 of the Act was dropped, therefore, there was no assessment and as such the assessee was not entitled for refund, has no merit. In the case of Esthuri Aswathiah v. ITO [1961] 41 ITR 539 (SC), their Lordships of the Supreme Court held that "no proceeding" terminated the assessment proceedings, and that it should be construed as meaning that the assessee had no assessable income. In the case of M.Ct. Muthuraman v. CIT reported in [1963] 50 ITR 656, the Madras High Court held as follows: "We are of opinion that the proceedings for 1953-54 and 1954-55 were lawfully terminated by the Income-tax Officer. It is true that section 23 does not in express terms provide for closing the assessment proceedings with an order th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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