SMT. SUDAMA DEVI L/H OF LATE LALCHAND YADAV,SONEBHADRA vs. ACIT, CIRCLE - 1, VARANASI

This appeal has been filed by Smt Sudama Devi, Legal heir of Late Shri Lalchand Yadav. It is directed against the order dated 22-12-2022 passed by Ld CIT(A), NFAC, Delhi and it relates to the assessment year 2011-12. The grievance of the assessee is that the refund of Rs.16,07,030/- claimed by the assessee in manual return of income filed u/s 139(4) of the Act has not been granted.

We notice that the instant case is a classic case demonstrating how the claim of the assessee for refund was struck due to technicalities. The chequered history of the case is narrated in brief. The assessee herein, Shri Lal chand Yadav is labour contractor. He expired on 20th August, 2011. Hence, Smt Sudama Devi, the legal heir of Shri Lal Chand Yadav filed return of income for AY 2011-12 manually on 26th March, 2013, i.e., within the period prescribed u/s 139(4) of the Act. In the return of income, the gross receipts were shown at Rs.14.22 crores and net income was shown at Rs.8,62,790/-. The above said tax liability was adjusted against the TDS deducted from the contract payments and a sum of Rs.16,07,030/- was claimed as refund.

The above said manual return was not processed. Hence the legal heir of the assessee filed grievance petitions more than once with CPC and also filed a grievance petition with “CPGRAMS” portal. The reply dated 28-02-2021 given to the assessee in the grievance petition dated 13-02-2021 filed in “CPGRAMS” is given in the appeal folder. It is stated in the reply dated 28-02-2021 given in CPGRAMS to the above said petition,

Against the above said reply given by CPGRAMS, the assessee filed appeal before Ld CIT(A). The First appellate authority, even though discussed the Smt. Sudama Devi L/H of Late Lalchand Yadav facts in detail, dismissed the appeal holding that no appeal against grievance lies with him. Aggrieved, the assessee has filed this appeal.

We heard the parties and perused the record. The present appeal has been filed by the legal heir of the deceased assessee. We notice that the tax authorities have expressed their inability to process the return of income filed manually by the assessee for AY 2011-12 and accordingly held that the said return of income is non-est in the eye of law. While the assessing officer states that the return of income was filed in the name of deceased assessee and further, it was unsigned and unverified, the legal heir of the assessee, however, claims that the return of income was duly signed and verified by the legal heir. The legal heir of the assessee has also submitted the return of income filed for the succeeding assessment year, i.e., AY 2012-13 was also filed manually and it was processed and refund was granted.

Be that as it may, we notice that the provisions of sec.237 to 239 of the Act regulate granting of refunds. Those provisions, then existing, read with Rule 41 require that the refund claim shall be made in a prescribed form and verified in the prescribed manner, i.e., the refund shall be made in Form no.30 and it shall be accompanied by a return in the form prescribed u/s 139 unless the claimant has already made such a return to the AO. Further, u/s 239(2) of the Act, the claim shall be made within one year from the last day of the assessment year.

In the instant case, the assessee has filed return of income on 26th March, 2013, i.e., within one year from the last date of the present assessment year, i.e., AY 2011-12. There is no dispute that the assessee has also filed return of income in the form prescribed u/s 139 of the Act. Hence the conditions prescribed in Rule 41 and Sec. 239(2) of the Act has been substantially complied with by the assessee. The only defect pointed out by the AO is that Smt. Sudama Devi L/H of Late Lalchand Yadav the assessee should have filed the return of income electronically and not manually. However, we notice that Rule 12(3) of Income tax Rules, which deals with the filing of return of income, has undergone many changes every year. We notice that electronic filing of return has been made compulsorily with effect from a particular date only.

It is settled legal proposition that the revenue cannot collect tax except in accordance with the law. Hence the excess tax paid by the assessee cannot be retained by the revenue. We notice that the assessee has substantially complied with the provisions of sec. 237 to 239 of the Act. We were also informed that the refund claimed for AY 2012-13 has been granted under similar set of facts. Under these peculiar set of facts, we are of the view that the AO should grant the refund claimed by the assessee by processing the manual return of income filed by the assessee in terms of sec 237 to 239 of the Act. We noticed that the Ld CIT(A) has taken the view that the grievance of the assessee is not appealable. However, Hon'ble Supreme Court in the case of Genpact India(P.) Ltd. v. Dy. CIT [2020] 268 Taxman 299/[2019] 111taxmann.com 402/419 ITR 440 has held in the context of additional tax payable u/s115QA that the same can be challenged u/s 246A under the clause "an orderagainst the assessee where the assessee denies his liability", even though the tax paid u/s 115QA did not find place in the list of appealable orders enumerated in sec.246A of the Act. Accordingly, we are of the view that the denial of refund due to the assessee give rise to a grievance, which may be redressed by the appellate forums.

Accordingly, in the interest of natural justice, we restore the grievance of the assessee to the file of AO and direct him to process the manual return of income filed by the assessee and grant refund along with applicable interest. We order accordingly. Smt. Sudama Devi L/H of Late Lalchand Yadav

In the result, the appeal filed by the assessee is treated as allowed.