TMI Blog1996 (8) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... lf-assessment tax deposited under section 140A was Rs. 96,267. Thus a total of Rs. 12,43,780 had been paid as tax in respect of the returned income. An assessment order dated September 25, 1980, was made determining its income at Rs. 38,58,904. This assessment was subjected to appeal and the Income-tax Appellate Tribunal held that the assessment was barred by time and was accordingly annulled. After the annulment of the assessment, the petitioner asked the Assessing Officer to refund the whole amount of Rs. 12,43,780 paid by it but the Assessing Officer did not do so. Instead, he initiated proceedings under section 147 read with section 148 for making a reassessment. The petitioner then filed the present writ petition for the reliefs mentioned above. Since no interim order staying the assessment proceedings was made by this court, the assessment was completed overruling the petitioner's objection that there was no cause for initiating action under section 147/148 of the Act. The petitioner preferred appeals 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port the petitioner in so far as taxes admittedly payable on returned income and already paid in the form of tax deduction at source advance tax and self-assessment tax are concerned. That judgment was confined only to the tax paid in pursuance of the assessment order and, admittedly, the sums amounting to Rs. 12,43,780 were not paid in pursuance of any assessment order and was in respect of pre-paid taxes, i.e., tax paid voluntarily on the assessee's own admission before the filing of the return. This view has since been overruled by the hon'ble Supreme Court in CIT v. Chittoor Electric Supply Corporation [1995] 212 ITR 404, in which it has been held that in a case where an appellate court sets aside an assessment to be made again, no amount becomes refundable to the assessee unless a fresh assessment is made. The hon'ble Supreme, Court observed that under section 237 what is refundable to an assessee is the excess over the amount which is properly chargeable under the Act for that year and unless a fresh assessment is made, it would not be possible to say what amount is properly chargeable and until that is determined, the question of refund may not arise. The Supreme Court was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, as the case may be, in accordance with the provisions of this Chapter and as provided in sub-section (2), nothing in section 190 shall prejudice the charge of tax on such income under the provisions of sub-section (1) of section 4 of the Act. Section 191 enjoins a duty on the assessee to pay income-tax direct where no provision is made for deduction and where income-tax has not been deducted in accordance with the provisions of Chapter XVII. Section 190, inter alia, provides that any deduction made in accordance with the provisions enumerated therein and paid to the Central Government shall be treated as payment of tax on behalf of the person from whose income the deduction was made. Section 202 clarified that the power to recover tax by deduction was without prejudice to any other mode of recovery. Under section 205, it is provided that, where tax is deductible at the source, the assessee shall not be called upon to pay tax to the extent to which tax has been deducted from the income. As regards advance payment of tax, section 207 provides, that tax shall be payable in advance during any financial year in accordance with the provisions of sections 208 to 219 in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for any delay in furnishing the return or for any default or delay in payment of advance tax, before furnishing the return and the return shall be accompanied by proof of payment of tax and interest. These provisions eloquently indicate that the liability to pay tax is not dependent on the regular assessment being made by the Assessing Officer and where returns are filed under section 139 on the basis of which tax is payable, the assessee is made liable to pay such tax together with interest payable for any delay in furnishing the return or any default or delay in payment of advance tax. In this context, we may also refer to the provisions of section 234B pertaining to interest for defaults in payment of advance tax and more particularly to Explanation 1, which, inter alia, provides that, in the said section, "assessed tax" means for the purpose of computing the interest payable under section 140A, the tax on the total income as declared in the return referred to in that section as reduced by the amount of tax deducted or collected at source in accordance with the provisions of Chapter XVII. It would, thus, be clear that not only the liability to be subjected to tax arises under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and in violation of article 265 of the Constitution, where the tax is paid on the basis of the returns by the assessee, even if regular assessment under section 143 does not take place." Learned counsel for the petitioner, however, contended that the phrase "the amount with which he is properly chargeable under this Act for that year" used in section 237 has been interpreted by the hon'ble Supreme Court in the case of Chittoor Electric Supply Corporation [1995] 212 ITR 404, and it has been explained that unless a fresh assessment is made, it would not be possible to say what amount is properly chargeable. Learned counsel, Sri Ramachandran, contended that since the assessment as well as reassessment has been quashed and no further assessment can be made it is not possible to say what amount is properly chargeable as tax from the petitioner for the year under consideration and, therefore, the whole amount paid by the petitioner including the amount of pre-paid tax should be treated as an excess and become refundable under section 237. In our view, this approach is not legally permissible. The hon'ble Supreme Court was dealing with a case in which an assessment had only been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not paid the tax in any manner, that he can issue a notice under sub-section (2) of section 143 and it is only in a case where such a notice is issued and on enquiry the Assessing Officer finds that the assessee has understated the income or has computed excessive loss or has underpaid the tax that an assessment may become necessary. But the issue of a notice under section 143(2) does not invalidate the self-assessment by the assessee and omission to make an assessment or annulment of the assessment by the appellate authority, etc., would not make the pre-paid taxes unauthorised collections. The taxes that an assessee has paid, admitting the same to be the amount properly chargeable from him for a particular year, represent the legal liability under the Act of the assessee until an assessment under section 143 is made and he can get a refund only if, as provided in section 237, he satisfies the Assessing Officer that there was any excess. It is not the assessee's case at all that according to the provisions of the Act and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
