TMI Blog1998 (4) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... 153(1)(a)(iii) of the Act and accordingly no assessment order was passed within the aforesaid period of two years, i.e., uptil March 31, 1985. Therefore, the tax already paid by the petitioner, in the absence of any order of assessment, had to be refunded to the petitioner. The petitioner accordingly put forth his claim for the refund of the tax paid by him on the basis that since no order of assessment was passed within the statutory period under the Act, the tax already paid has become due for refund. Thus, the petitioner applied for refund of the entire tax paid by the petitioner but the application for refund was rejected and the rejection was communicated vide communication dated March 21, 1988. Accordingly, the present petition under article 226 of the Constitution of India. Heard learned counsel for the petitioner, Shri P. R. Bhave, and learned counsel for the respondents, Shri V. K. Tankha. Learned counsel for the petitioner submitted that the respondents were not legally entitled for retention of the tax paid by the petitioner without there being any assessment order and as such the action of non-refund of the tax on the part of the Income-tax Officer was illegal. Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding. The question for consideration is two-fold: (i) in such a situation whether the petitioner is entitled for refund of the entire tax paid by him accepting his liability for payment of tax, and (ii) as to what consequence flows from the provisions of section 153 of the Act for the default on the part of the Revenue for not making the assessment within the time limit provided by law. For the first proposition, learned counsel for the petitioner placed reliance on the case of R. Gopal Ramnarayan v. Third ITO [1980] 126 ITR 369 (Kar). It is a decision of a single judge of the Karnataka High Court. This case has no foundation so far as the proposition in the present case is concerned. In the case so relied on, the position was different, i.e., for the assessment year 1973-74, pursuant to an order passed under section 143(3) of the Act, the petitioner paid a sum of Rs. 94,179 as advance tax and also a further sum of Rs. 4,883.89 was deducted as tax at source under the Act. The petitioner also paid for that assessment year a sum of Rs. 2,367 on self-assessment when he filed his return and the total tax paid by the assessee for the relevant assessment year was Rs. 1,01,429.89. Sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is income-tax return admitting his liability to tax and on the return of income-tax no order, whatsoever, was passed by the Income-tax Officer as required under the law. The next case relied on by learned counsel for the petitioner is of Deep Chand Jain v. ITO [1984] 145 ITR 676 (P H). It is a case of the Punjab and Haryana High Court. In this case also the position was different as in this case there was a demand notice under section 156 of the Act in regard to the assessment year 1971-72 and thereafter the assessee filed the income-tax return for the said year on October 1, 1971, showing an income of Rs. 39,469. He thereafter filed a second return wherein he showed his income of only Rs. 6,130 and no orders were passed either on the original return or on the revised return for the relevant year within the period provided by law and, therefore, the claim for refund of the advance tax was made. The petitioner deposited a sum of Rs. 9,400 by way of advance tax in compliance with the order passed under section 210 of the Act. Here the position is different. There was a revised return before the Income-tax authorities at the time when no order on the original return was passed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the pendency of the writ petition, the assessment was completed overruling the petitioner's objection that there was no cause for initiating action under section 147/148 of the Act. Against this order, the petitioner appealed and ultimately the Income-tax Appellate Tribunal by order dated April 12, 1989, quashed the reassessment holding that the assessee having filed a return of income, proceedings under section 147(a) could not be taken against the assessee. The refund was claimed as there was no order of assessment and no liability of income-tax on the petitioner and, therefore, he was entitled to refund of paid tax. The tax payable on the basis of the returns filed by the assessee is treated as "assessed tax". It is not at all made dependent on any regular assessment being made, though in the event of regular assessment, the amount paid under sub-section (1) of section 140A is deemed to have been paid towards the regular assessment. Therefore, by no stretch of imagination, can the tax paid and collected under section 140A be described as a mere ad hoc or interim payment which can be said to fail in the absence of a regular assessment, as was sought to be contended on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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