GANGA OIL MILLS,KOLKATA vs. I.T.O.,WARD-43(4), KOLKATA

This is an appeal preferred by the assessee against the order of Ld. CIT(A)-13, Kolkata dated 23.05.2019 for AY 2007-08.

The main grievance of the assessee is against the action of the AO in not granting the refund of Rs. 5,75,990/- claimed by the assessee in the return of income (ROI) filed by it for AY 2007-08 (Refer page 1 to 23 of PB). It is noted that the assessee had filed the Return of income tax (ROI) along with acknowledgment on 23.07.2007 and in it has clearly filled in the columns about the refund claim of Rs. 5,75,990/-, the details of which is evident/available at page 11 of the return of income. However, according to assessee, the refund was not granted to the assessee. So according to the assessee, it has filed several reminders/applications for the refund, which was rejected for the first time on 23.01.2017 (refer page 103 of PB) and reiterated the same vide letter dated 20.04.2017 (refer page 107 of PB). According to the Ld. A.R., the assessee’s claim for refund was rejected on the ground that the assessee had filed defective return of income, however, it was pointed out by the Ld. AR that as per Section 139(9) of the Income Tax Act, 1961 (hereinafter referred to as the Act) if there is any defect in the ROI, the AO ought to have given notice to the assessee and given an opportunity to the assessee to rectify the same within a period of fifteen (15) days from the date of intimation from AO which action according to the assessee has not been done by the AO. So according to assessee, since the assessee has Ganga Oil Mills AY: 2007-08 filed the return of income and the refund has been claimed in the return of Income as contemplated u/s. 237 and so it was entitled to refund as per chapter XII, which is in accordance to law. However, according to Ld.AR, the Ld. CIT(A) has made an observation while rejecting the appeal of the assessee against rejection order (refund) that “ITR filed in AY 2007-08 which has duly filed on 23.07.2007 has not been provided and erroneously mentioned about some illegible return of March, 2006”. This observation of Ld. CIT(A) according to Ld. A.R is erroneous and drew our attention to page 1 to 23 of PB, wherein the ROI has been found placed and he submitted that the Ld. CIT(A) erred in finding that the assessee had not filed the return of income for AY 2007-08. We from a perusal of page 1 to 23 PB (ROI) for AY 2007-08), notes that the return of income for AY 2007-08 have been filed and there is acknowledgement to that effect and that the assessee has claimed the refund for Rs. 5,75,990/- (refer page 11 of ROI of PB). We find that the Ld. CIT(A) has wrongly taken note that the return of income for AY 2007-08 has not been filed by the assessee by mistakenly looking into the ROI for AY 2006-07 and has made the observation (supra) and thereafter concluded that the assessee might not have filed ITR, which action of Ld. CIT(A) is per-se erroneous finding of fact. Moreover, we note that ITR for AY 2007-08 is legible and the assessee has approached the office of the AO for the refund which was rejected in the year 2017. Since the Ld. CIT(A) has misread the ITR filed by the assessee and wrongly assumed that assessee had not filed ROI for AY 2007-08 [wherein the assessee has clearly stated about the refund of Rs. 5,75,990/- ] therefore, we set aside the impugned order of the Ld. CIT(A) and remand the issue back to the file of the Ld. CIT(A) for fresh adjudication of the appeal of assessee in respect of its claim for refund. And all the issues raised by both parties are left open. And after hearing the assessee, the Ld. CIT(A) to pass order in accordance to law.

In the result, the appeal of the assessee is allowed for statistical purposes.