TMI Blog2022 (8) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... This Court is also of the view that an assessee cannot be penalised for inaction on the part of the respondent-department. Concept of intimation under Section 143(1) of the Act and refund are entirely different - Second proviso to Section 143(1) of the Act deals with the issue of intimation and not refund as contemplated under Clause (e) of Section 143(1) of the Act. In fact, the concept of refund has been separately dealt with under Chapter XIX of the Act. Separate claim for refund - This Court is of the view that the assessee need not file any separate claim for refund as the same is deemed to have been incorporated in the return filed by the assessee itself. Further, prior to expiry of time for processing of return or failure of the respondent to process the return within the stipulated and or extended time, the petitioner has no right to expect refund. In fact, upon respondent s failure to process an assessee s return within time, the right to refund arises by operation of law. Application of Rajesh Jhaveri Stock Brokers Private Limited [ 2007 (5) TMI 197 - SUPREME COURT] - The judgment of the Supreme Court in Rajesh Jhaveri Stock Brokers Private L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer had to process the return before the due date prescribed under Section 143(1) of the Act after taking approval of CCIT. However, Mr. Abhishek Maratha on the said date of hearing had sought further time to obtain further instructions from the Assessing Officer. 3. Today, Mr. Abhishek Maratha has handed over the instructions received by him from the Assessing Officer. The same are reproduced hereinbelow:- The assessee company M/s M.J. Engineering Consultants Pvt. Ltd. (PAN AAHCM3756B) has filed its ITR for AY 2015-16 on 11.09.2015 vide ACK No. 793330171110915 at the total Income of Rs. 20,26,638/- and thereby claiming the refund of Rs. 11,27,410/-. The ITR of the assessee couldn't be processed by the CPC and the same was transferred on 04-Dec-2015 to then Jurisdictional AO i.e. Circle 16(1), Delhi however the same could not be processed under sub-section (1) of section 143 of the Act due to some technical reasons or otherwise not attributed to the assessee. Consequently, intimation regarding processing of the return could not be sent within the period as prescribed in the second proviso to section 143(1) of the Act. Later, the PAN as well as jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent to CBDT, copy of e-mail sent to CPC and ITBA Helpdesk and copy of referred ITBA instruction are also attached herewith for ready reference. The facts of the case are hereby submitted for preparing of counter affidavit and any further requirement may please be informed to the undersigned. 4. Apart from adopting the aforesaid submissions, Mr. Maratha points out that as the petitioner s return was not processed due to technical reason not attributable to assessee, no refund was issued. He emphasises that in the present case, the petitioner had not applied for refund within the extended period of time for processing of the return. 5. He also relies upon the judgment of the Supreme Court in Assistant Commissioner of Income Tax vs. Rajesh Jhaveri Stock Brokers Private Limited, (2008) 14 SCC 208, wherein it has been held as under:- 15. In the scheme of things, as noted above, the intimation under section 143(1)(a) cannot be treated to be an order of assessment. The distinction is also well brought out by the statutory provisions as they stood at different points of time. Under section 143(l)(a) as it stood prior to April 1, 1989, the Assessing Officer had to pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t memo under Section 139(9) of the Act. 8. Since, in the present case, the Assessing Officer has failed to process the return of the petitioner filed in accordance with law within the prescribed time, this Court is of the opinion that the return as declared/filed will have to be treated as deemed intimation and an order under Section 143(1) of the Act. (See: Court on its own Motion vs. Union of India 2013 (352) ITR 273 (Delhi). 9. This Court is also of the view that an assessee cannot be penalised for inaction on the part of the respondent-department. CONCEPT OF INTIMATION UNDER SECTION 143(1) OF THE ACT AND REFUND ARE ENTIRELY DIFFERENT. 10. Further, the concept of intimation under Section 143(1) of the Act and refund are entirely different. Second proviso to Section 143(1) of the Act deals with the issue of intimation and not refund as contemplated under Clause (e) of Section 143(1) of the Act. In fact, the concept of refund has been separately dealt with under Chapter XIX of the Act. Section 237 of the Act reads as under:- Refunds. 237. If any person satisfies the [Assessing] Officer that the amount of tax paid by him or on his behal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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