Late Valjee jivan das suraiya, Kolkata V. I.T.O Wd-37(4), Kolkata, Kolkata

ITA 1690/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91943 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 31-05-2013
• Court: TRIBUNAL
• Department Lawyers: SANJAY SR DR
• Assessee Lawyers: P B MUKHERJEE; A K CHANDRA
• Keywords: Principle of natural justice
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: KOLKATA [BEFORE HON BLE SHRI B.P.JAIN, AM] I.T.A NO.1690 /KOL/2013 ASSESSMENT YEAR: 2008 - 09 LATE VALJEE TRIVANDAS SURAIYA VS I.T.O., WARD - 37(4 ) KOLKATA KOLKATA (APPELLANT) ( RE SPONDENT) (PAN: ALOPS 8582 J) FOR THE APPELLANT : SHRI P.B.MUKHERJEE & SHRI A.K.CHANDRA,ADVOCATE FOR THE RESPONDENT : SHRI SANJAY, SR.DR, ADDL. C.I.T. DATE OF HEARING : 04 .06 .2015. DATE OF PRONOUNCEMENT: 04 .06 .2015. ORDER THIS APPEAL OF THE ASS ESSEE ARISES FROM THE ORDER OF LD.CIT(A) - XXIV, KOLKATA DATED 04.03 .2013 FOR ASSESSMENT YEAR 2008 - 09. 2. THE ASSESSEE HAS RAISED THE SOLE GROUND OF APPEAL : - 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES THE LEARNED CIT(A) ERRED IN HOLDING THAT THE AP PELLANT WAS NOT ENTITLED TO GET FUND OF RS.38,704/ - AS HELD BY THE A.O. 3. THE BRIEF FACTS OF THE CASE AS EMANATING FROM ORDER OF THE AO ARE REPRODUCED HEREIN BELOW FOR THE SAKE OF CONVENIENCE : - REFUND AMOUNT IS TO BE TREATED AS NIL U/S 239(2)( C) OF I.T.ACT, 1961, WHERE IN IT IS STATED THAT NO SUCH CLAIM SHALL BE ALLOWED, UNLESS IT IS MADE WITHIN THE PERIOD SPECIFIED HERE UNDER, NAMELY : - WHERE THE CLAIM IS IN RESPECT OF INCOME WHICH IS ASSESSABLE FOR ANY OTHER ASSESSMENT YEAR, ONE YEAR FROM T HE LAST DAY OF SUCH ASSESSMENT YEAR. 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT BEFORE THE LD. CIT(A) HIS SUBMISSIONS ARE PRODUCED TO REPRODUCE HEREIN BELOW : SINCE GR. NO.1 TO 3 ARE IN RESPECT TO REFUSAL OF REFUND OF RS.38,704/ - BY THE A.O. TO THE ASSESSEE IN SPITE OF THE FACT THAT THE REFUND HAS BEEN DETERMINED IN THE ASSTT. IT IS SUBMITTED THAT THE ACTION TAKEN BY THE A.O. IS AGAINST THE NATURAL JUSTICE AND FAIR PLAY. TO EXPLAIN THE MATTER BRIEFLY IT IS STATED THAT IN ALL CASES WHERE AN OTHER WISE VALID REFUND CLAIMED U/S 237 IS FILED BY AN ASSESSEE AFTER THE EXPIRY OF STATUTORY TIME LIMIT PRESCRIBED ITA NO. 1690/KOL/2013 LATE VALJEE J IVANDAS SURAIYA . A.YR. 2008 - 09 2 U/S 239, THE AO HAVING JURISDICTION OVER THE CASE, MAY ADMIT THE SAID REFUND CLAIM & DISPOSE OFF THE SAME AS MERIT & IN ACCORDANCE WITH LAW PROVI DED THE FOLLOWING CONDITIONS ARE SATISFIED : - I ) THE REFUND ARISES AS A RESULT OF EXCESS TAX DEDUCTED AT SOURCE, COLLECTED AT SOURCE & PAYMENTS OF ADVANCE TAX UNDER THE PROVISIONS OF CHAP.XVIII B, XVIIIBB & XVIIC RESPECTIVELY AND THE AMOUNT OF REFUND DOES NO T EXCEED 1 LAKH FOR ANY ASST. YEAR; . THIS ORDER IS EFFECTIVE FORM 01.11.1993 & WILL APPLY TO ALL CLAIMS OF REFUND PENDING AS ON THAT DATE & ALSO IN RESPECT OF ALL REFUNDS CLAIMS FILED ON OR AFTER THAT DATE (ORDER F.NO.225/208/93 - IT(A - 11) DTD. 12 TH OCT., 1993 . 4.1. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE FACTS ON RECORD DISMISSED THE APPEAL OF ASSESSEE AND THE RELEVANT FINDINGS OF THE LD. CIT(A) IN PARA 2.3. ARE REPRODUCED HEREIN BELOW : - 2.3. I HAVE CAREFULLY CONSID ERED THE SUBMISSION OF THE LD.A/R SECTION 239(2) READS AS UNDER : - NO SUCH CLAIM SHALL BE ALLOWED, UNLESS IT IS MADE WITHIN THE PERIOD SPECIFIED HEREUNDER, NAMELY: - ( A ) WHERE THE CLAIM IS IN RESPECT OF INCOME WHICH IS ASSESSABLE FOR ANY ASSESSMENT YEAR COMMEN CING ON OR BEFORE THE 1 ST DAY OF APRIL, 1967, FOUR YEARS FROM THE LAST DAY OF SUCH ASSESSMENT YEAR; ( B ) WHERE THE CLAIM IS IN RESPECT OF INCOME WHICH IS ASSESSABLE FOR THE ASSESSMENT YEAR COMMENCING ON THE FIRST DAY OF APRIL,1968, THREE YEARS FROM THE LAST DAY OF THE ASSESSMENT YEAR; ( C ) WHERE THE CLAIM IS IN RESPECT OF INCOME WHICH IS ASSESSABLE FOR ANY OTHER ASSESSMENT YEAR, [ONE] YEAR FROM THE LAST DAY OF SUCH ASSESSMENT YEAR.] ( D ) WHERE THE CLAIM IS IN RESPECT OF FRINGE BENEFITS WHICH ARE ASSESSABLE FOR ANY ASSESSM ENT YEAR COMMENCING ON OR AFTER THE FIRST DAY OF APRIL, 2006, ONE YEAR FROM THE LAST DAY OF SUCH ASSESSMENT YEAR. CONSIDERING THE FACTS OF THE CASE, I AM OF THE OPINION THAT THE A.O. HAS CORRECTLY DISALLOWED THE REFUND IN ACCORDANCE WITH THE PROVISION OF SECTION 239(2). AS REGARDS THE APPLICABILITY OF THE BOARD S CIRCULAR F.NO.225/208/93 - ITA - II DATED 26/10/2993, I AM OF THE VIEW THAT THE CIT(A) IS NOT COMPETENT TO EXERCISE ANY POWER UNDER THE SAID CIRCULAR. FOR STATISTICAL PURPOSE, THESE GROUNDS OF APPEAL ARE DISMISSED. 4.2. THE LD. COUNSEL FOR THE ASSESSEE RELIED UPON THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF CIT VS SHELLY PRODUCTS AND ANOTHER 261 ITR 367 AND PRAYED TO ALLOW THE APPEAL OF THE ASSESSEE IN VIEW OF THE DECISION OF THE HON BL E SUPREME COURT IN THE CASE OF CIT VS SHELLY PRODUCTS AND ANOTHER (SUPRA). THE LD. DR, ON THE OTHER HAND, RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD THE RIVAL CONTENTIONS AND GONE THROUGH THE FACTS OF THE CASE. THE LD. COUNSEL FOR T HE ASSESSEE RELIED UPON THE DECISION OF THE HON BLE SUPREME COURT IN ITA NO. 1690/KOL/2013 LATE VALJEE J IVANDAS SURAIYA . A.YR. 2008 - 09 3 THE CASE OF CIT VS SHELLY PRODUCTS & ANOTHER (SUPRA). THE RELEVANT PORTION OF THE HEAD NOTES OF THE SAID DECISION IS REPRODUCED HEREIN BELOW : - THE LIABILITY TO PAY INCOME - TAX CHARGEABL E UNDER SECTION 4 OF THE ACT DOES NOT DEPEND ON THE ASSESSMENT BEING MADE. AS SOON AS THE FINANCE ACT PRESCRIBES THE RATE OR RATES FOR ANY ASSESSMENT YEAR, THE LIABILITY TO PAY THE TAX ARISES. THE ASSESSEE IS HIMSELF REQUIRED TO COMPUTE HIS TOTAL INCOME AN D THE INCOME - TAX THEREON WHICH INVOLVES A PROCESS OF SELF - ASSESSMENT. SINCE ALL THIS IS DONE UNDER THE AUTHORITY OF LAW, ARTICLE 265 OF THE CONSTITUTION OF INDIA IS NOT VIOLATED : BOTH THE LEVY AND COLLECTION OF TAX ARE IN ACCORDANCE WITH LAW. FA ILURE OR INABILITY TO FRAME ANOTHER ASSESSMENT AFTER THE EARLIER ASSESSMENT IS SET ASIDE OR NULLIFIED IN APPROPRIATE PROCEEDINGS DOES NOT ENTITLE THE ASSESSEE TO CLAIM REFUND OF ADVANCE TAX AND TAX PAID ON SELF - ASSESSMENT , BECAUSE TO THAT EXTENT THE ASSESS EE HAS ADMITTED HIS LIABILITY TO PAY TAX IN ACCORDANCE WITH THE LAW. IF THE ASSESSING AUTHORITY, ON AN EARLIER ASSESSMENT MADE BEING SET ASIDE OR NULLIFIED IN APPROPRIATE PROCEEDINGS, CANNOT MAKE A FRESH ASSESSMENT, IT AMOUNTS TO DEEMED ACCEPTANCE OF THE RETURN OF INCOME FURNISHED BY THE ASSESSEE. IN SUCH A CASE THE ASSESSING AUTHORITY IS DENUDED OF ITS AUTHORITY TO VERIFY THE CORRECTNESS AND COMPLETENESS OF THE RETURN, WHICH AUTHORITY IT HAS WHILE FRAMING A REGULAR ASSESSMENT. THE ASSESSING AUTHORITY MUS T ACCEPT THE RETURN AS FURNISHED AND CANNOT IN ANY EVENT RAISE A DEMAND FOR PAYMENT OF FURTHER TAXES. ACCEPTING THE INCOME AS DISCLOSED IN THE RETURN FURNISHED BY THE ASSESSEE, IT MUST REFUND TO THE ASSESSEE ANY TAX PAID BY THE ASSESSEE IN EXCESS OF THE LI ABILITY INCURRED BY HIM ON THE BASIS OF THE INCOME DISCLOSED. EVEN IF THE TAX PAID IS FOUND TO BE LESS THAN THAT PAYABLE, NO FURTHER DEMAND CAN BE MADE FOR RECOVERY OF THE BALANCE SINCE THE FRESH ASSESSMENT IS BARRED. ANY RE TENTION OF THE BALANCE MAY OFFE ND ARTICLE 265. 5.1. FOLLOWING THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF CIT VS SHELLY PRODUCTS & ANOTHER I AM OF THE VIEW THAT THE AO CANNOT RETAIN THE BALANCE OF REFUND WHICH IN FACT IS REFUNDABLE TO THE ASSESEE AND IF THE SAME IS RETA INED IT WILL ARTICLE 265 OF CONSTITUTION OF INDIA. ACCORDINGLY AO IS DIRECTED TO REFUND THE SAID AMOUNT IN VIEW OF THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF CIT VS SHELLY PRODUCTS AND ANOTHER (SUPRA)., THUS APPEAL OF THE ASSESSEE IS ALLOWED. 6 . IN THE RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDE R PRONOUNCED IN THE OPEN COURT ON 04 .06 .2015. SD/ - [ B.P.JAIN ] ACCOUNTANT MEMBER DATE: 04 .06 .2015. R.G.(.P.S.) ITA NO. 1690/KOL/2013 LATE VALJEE J IVANDAS SURAIYA . A.YR. 2008 - 09 4 C OPY OF THE ORDER FO RWARDED TO: 1 . LATE VALJEE JIVAN DAS SURAIYA, SURAYA HOUSE, 9, RABINDRA SARANI, KOLKATA - 700073. 2 I.T.O., WARD - 37(4 ), KOLKATA 3 . CIT(A) - X XIV , KOLKATA 4. CIT - KOLKATA. 5. CIT - DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES