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Income Tax Appellate Tribunal, AHMEDABAD “B” BENCH, AHMEDABAD
Per Pramod Kumar, Vice President:
These two appeals pertain to the same assessee, involve a common issue and were heard together. As a matter of convenience, therefore, both the appeals are being disposed of by this consolidated order.
The common grievance in these two appeals is as follows:-
“On the facts and circumstances of the case of your appellant, the Ld.CIT(A) has erred in holding that the claim of refund of your appellant is barred by limitation. Therefore, your appellant prays the honourable tribunal to set aside the order of the Ld. CIT(A) and direct the AO to pass necessary order to grant refund or alternatively to process the return.”
To adjudicate on these appeals, only a few material facts need to be taken note of. The income tax returns in these cases were admittedly filed only in response to notices under section 147 and well beyond the time limits set out under section 139. On these facts, the credit for tax deduction at source was declined as return was not filed within specified period. Aggrieved, assessee carried the matter in appeal before the CIT(A) but without any success. Learned CIT(A) rejected the claim of the assessee by observing as follows:-
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“2.3 I have carefully considered the facts of the case, the 154 order and the written submission of the appellant. The appellant has filed the appeal against the rejection of the rectification application u/s. 154 of the I.T, Act whereby the claim of refund of Rs.3,392/- made in the return of income filed by the appellant in response to the notice issued u/s. 148 of the I.T. Act, 1961 was rejected. In fact, the appellant did not submit the return of income within the period under section 139(1) or subsequently. Thereafter, the AO ha issued the notice u/s. 148 of the I. T. Act, 1961 on 30/09/2013 and consequently the appellant filed the return of income electronically on 26/06/2014 declaring NIL income with the refund claim of Rs.3,392/-. The appellant now contends that in the assessment order, the AO himself has mentioned that 'give credit for prepaid taxes after due verification, issue demand notice and challan and RO as the case may be', but he has not granted the refund. Taking into account these observations of the AO, the appellant before the AO by application u/s. 154 has claimed the refund which he made in the return of income filed in response to notice u/s, 148 of the I.T. Act, 1961. In support, he relied upon the judgment of Hon'ble Karnataka High Court in the case of Shri A. Balakrishnan [290 ITR 227] and also the Circular No. 9 / 2015 dated 09/06/2015. The claim of the appellant has been examined and if is noticed that the procedure for claim of the delayed refund is prescribed under the provisions of section 239(1)(c) of the I.T. Act, 1961, whereby the appellant ought to have applied in the prescribed Form No. 30 as per the Rule No. 41 of I. T. Rules. In the instant case, the appellant has not complied with the said procedure laid down u/s. 239 of the I.T. Act, 1961 within the period of one year from the last day of the assessment year i.e. 31/03/2012. Merely mentioning about the credit of the prepaid taxes and issue of R.O. in the body of the assessment order by the A.O. would not give any entitlement to claim the refund, once it is not in accordance with the provisions of section 239(1)(c) of the I.T. Act, 1961. Further the facts of the judgment and contents of the circular cited by the appellant are different from the facts of the instant case and therefore not applicable. In result, the rejection of the rectification application by the AO is perfect in law and the claim of refund by the appellant is found not in accordance as per the provisions of the I. T. Act, 1961. Thus, the ground of appeal is dismissed.”
Not satisfied, the assessee is in further appeal before the Tribunal.
We have heard the rival submissions, perused the material on record and duly considered facts of the case in the light of the applicable legal position.
We find the issue in appeal is squarely covered, in favour of the assessee, by Hon’ble Karnataka High Court’s judgment in the case of A. Balakrishnan Vs. Hindustan Machine Tools Ltd [(2007) 290 ITR 227 (Kar)] wherein it has been, inter alia, observed as follows:-
“23. Learned counsel for respondent No. 2 has also brought to the notice of the Court section 119(2)(b) of the Act and submits that unless the petitioner files an application for refund before the Board and the Board directs for processing the return after condoning the delay, the Assessing Officer will not
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be in a position to process the return; that the Board in exercise of its power under section 119 in turn can delegate the power on other Officers of the Income-tax Department for the purpose of condoning any delay or non- compliance for which there are time stipulations and such power having been delegated to the Commissioner, it is necessary that the petitioner should apply to the Commissioner under this provision seeking the condonation of delay in filing the return of income.
While it is no doubt open to an assessee to invoke the provisions, not one invoking the provisions of section 119(2)(b) does not come in the way of the duty of the Income-tax Department to process the return filed by the petitioner.
A reference to section 119(2)(b) of the Act cannot relieve the respondents from the obligation of examining a return filed by the petitioner. It cannot be used as an excuse for inaction on the part of the respondents.
In the present case, it is obvious that the respondent No. 2 is not inclined to process the return as the petitioner may become entitled for refund if the return is processed and orders passed thereon. If it were to be a case where the petitioner was to pay some tax which he had not paid earlier, perhaps the respondents would have been more than willing to even issue a notice under section 147 of the Act and calls upon the assessee to file a return or a revised return as the case may be and proceed to take further action under the Act. The test is if a return pursuant to the notice under section 147 of the Act could be processed, there is no reason as to why return filed otherwise cannot be processed. The defence put up by the respondents for not processing the return filed by the assessee in Form 2-D [copy at Annexure-D] is not supported by any provision of the statute and can only amount to inaction on the part of the respondents.
The time stipulation prescribed for filing return of income in terms of section 139 of the Act is operative on a person who is compelled to file a return in terms of section 139(1) of the Act. It is a person who has income over and above the exempted limit and whose income is taxable under the Act, who is required to file the return and while so, is bound to follow the period. The extended periods in terms of several sub-sections are also applicable to such persons.
Likewise, the notice in terms of section 147 and the time stipulation for issue of notice, etc., are also in respect of a person who has taxable income and whose taxable income has either not been offered to assessment at all or who has not declared full particulars of his income. For a person like the petitioner, if his taxable income is nil, in the sense that he has no obligation to file a return, the time stipulations also equally cannot apply. Therefore, to say that the income-tax authorities are disabled from scrutinizing the return filed by the petitioner, in view of the time stipulation in terms of section 153 for processing such return may not be correctly apply at all. On the other hand,
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the employer having deducted certain amount from the petitioner as deduction at source on the payment of salary/retiral benefits and having remitted it to the account of the Income-tax Department and this deduction being in terms of the provisions of the Act and if the assessee is not otherwise enabled to claim refund of this amount under any other statutory provisions and if he is not actually liable to pay the kind of income-tax deducted at source nor the learned counsel for respondent having pointed out to any enabling statutory provision, the only other way the petitioner can seek for refund of the amount is by filing a return of his income and as a result of the assessment if it is found the tax liability of the petitioner is nil, the Assessing Officer may take note of the amount already deducted from out of the amount paid to the petitioner by his employer and remitted to the Income-tax Department and direct refund of that amount to the assessee as part of the assessment order. For not performing this exercise, the respondents cannot bind the time stipulation indicated in section 139 of the Act as a defence.
For the very reason, reference to provisions of section 192(1B) of the Act and on which reliance is placed by the learned counsel for the respondents is also not tenable, as it is only such assessee who is seeking for an extension of the time stipulation or a condonation of delay in compliance, may invoke the provisions of section 119(2)(a) of the Act. If no time stipulation was in the first instance applicable to the return that is filed by the petitioner, the provisions of section 119(2)(b) are also not needed at all.
Viewed from another angle also, the respondents cannot decline to process the return as the exemption of payment as terminal benefit and exceeding a sum of Rs. 5 lakhs in terms of section 10(10C) of the Act is also one on a claim by the assessee as an amount received which qualifies for this exemption. This again can be done only in a return filed by the assessee and not elsewhere. It may be noticed that if the assessee is not entitled for this benefit of section 10(10C), then the income becomes taxable and it can be brought to tax by the Assessing Officer by invoking the provisions of section 147 of the Act. At least for determination of this position, it will be necessary for the Assessing Officer to process the return and finalize the same and if need be by invoking the provisions of section 147 also. Even without looking into the return, it will not be possible for the Assessing Officer to conclude that as there is no taxable income, no need to process the return, etc. Therefore, in either view of the matter, it will be necessary for the Assessing Officer to process the return and to pass orders in accordance with the provisions of the Act and not to justify the inaction.
It is the duty of the functionaries under the Income-tax Act to implement the provisions of the Act in accordance with law. A return filed is bound to be processed by the income-tax authorities for which purpose they are meant unless there is an embargo placed. Learned counsel for respondent No. 2 has not been able to point out a specific statutory provision which places an embargo and on the other hand is only pointing out to other possibilities of invoking relaxation, etc., which by itself does not place an embargo to process the return.
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It is rather unfortunate that the Income-tax Department has taken such an adamant and stubborn stand only to deny a possible refund to the petitioner. An amount which would have been otherwise due to the petitioner if is retained by the Income-tax Department without any justification, then inaction cannot be put up as a defence for retention of an amount. I say this because the amount which can be realised even by way of income-tax from any assessee can only be in accordance with the statutory provisions, as is mandated under article 265 of the Constitution of India.
In terms of the law laid down by this Court in the case of CIT v. Surendra Prabhu P. 2005 (59) KLJ 609 on which reliance is placed by learned counsel for the petitioner it does points out that in respect of any payment received by a person seeking voluntary retirement the first five lakhs rupees is exempt under section 10(10C) of the Act and in respect of balance of the amount, the tax deducted is not justified as the balance amount is one which entitles for exemption within the permissible limit.
It is not necessary for this Court to go into these details. If such is perhaps the factual position, retention of the amount can be obviously in violation of law and as one without proper authority.
Though a writ of mandamus could have been issued even for refunding of the amount, as this aspect of the matter has not been examined by the authorities, it is but proper to issue a mandamus directing the 2nd respondent to ensure that the return filed by the assessee is duly processed in accordance with law and appropriate orders passed on the same within three months from today.
Petitioner having been put to the ordeal of not processing his return, declining an amount which he would have earned by his toil, respondents are bound to compensate and I am of the view it calls for commensurate cost to be paid to the petitioner. Cost is also increased to make the respondents realise the effect of it, as this Court cannot appreciate an inaction on the part of a public authority being put forth as a defence for not performing the duty and that in turn resulting in harassment and hardship to an hapless citizen like the petitioner who is compelled to approach this Court for relief.
Rule made absolute. The endorsement bearing No. F. No. 5/RTI/ CIT V/2006-07, dated 18-8-2006 [copy at Annexure-E] passed by the respondent No. 2 is hereby quashed by issue of a writ of certiorari.”
In the absence of anything to the contrary by Hon’ble jurisdictional High Court, these views bind us as well. The ratio of this decision applies on the facts of this case as well.
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In view of the above discussions, as also bearing in mind entirety of the case, we deem it fit and proper to remit the matter to the file of the Assessing Officer for examination of claim on merits. Ordered, accordingly.
In the result, both the appeals are allowed for statistical purposes. Pronounced in the open court today on the 24th June, 2019
Sd/- Sd/-
Ms. Madhumita Roy Pramod Kumar (Judicial Member) (Vice President) Ahmedabad, the 24th day of June, 2019 **bt Copies to: (1) The appellant (2) The respondent (3) Commissioner (4) CIT(A) (5) Departmental Representative (6) Guard File By order TRUE COPY Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad
Date of dictation: .....order prepared as per 3 pages manuscripts of Hon’ble VP-attached........ attached.....24.05.2019..... 2. Date on which the typed draft is placed before the Dictating Member: .... 24.05.2019..... 3. Date on which the approved draft comes to the Sr. P.S./P.S.: .... 24.05.2019...... . 4. Date on which the fair order is placed before the Dictating Member for Pronouncement:… 24.05.2019... 5. Date on which the file goes to the Bench Clerk : ............ 6. Date on which the file goes to the Head Clerk : ……………………………. 7. The date on which the file goes to the Assistant Registrar for signature on the order: …… 8. Date of Despatch of the Order: ………………......