MEWAT GRIT UDYOG (SINCE DISSOLVED) THROUGH ITS SUCCESSOR NKB INFRASTRUCTURE PVT LTD,REWARI, HARYANA vs. INCOME TAX OFFICER, WARD-2, REWARI, HARYANA

3 ITA No. 372/Del/2024 Mewat Grit Udyog to the Assessee. Accordingly, the remaining amount of Rs. 11,33,550/- was refunded to the Assessee after obtaining the approval of Jt. Commissioner of Income Tax, Range-3, Gurugram. 8. Subsequently, the Assessee filed an application dated 23.09.2021 claiming further refund of Rs. 7,40,377/-. In the application the whole difference in the amount of TDS and Advance Tax as computed by the Department from the one that was reflected in Form 26AS, was explained by the Assessee. 9. The TDS computed by the department was Rs. 1,35,496/- less than the amount shown in Form 26AS also the amount of Advance Tax was less by Rs. 6,04,881/-. The whole difference totals to Rs. 7,40,377/-.' 10. The request of the Assessee was disposed off by the AO vide order dated 04.10.2021. The Assessee again filed the application under section 154 claiming the refund of Rs. 7,40,377/-. But again, the same was not allowed to the Assessee stating that credit of these prepaid taxes of Rs. 7,40,377/- (TDS Rs. 1,35,496/- and the Advance Tax Rs. 6,04,881/-) has neither been claimed in the return of income nor during the assessment proceedings under section 143(3). Aggrieved, the Assessee preferred appeal before the ld. CIT(A) who dismissed the appeal of the assessee. 11. Aggrieved by the order under section 154 of the Act, the Assessee filed the appeal in Form 35 on 22.01.2022.

4 ITA No. 372/Del/2024 Mewat Grit Udyog 12. While dismissing the appeal of the assessee seeking rectification u/s 154, the CIT(Appeals), NFAC, Delhi vide order dated 10.01.2024 held that,

"...appellant filed his the application u/s 154 dated 23.09.2021 whereas the original assessment order had been passed u/s 143(3) of the Act on 25,10.2012 and the mistake was committed in the original assessment order. The application under Section 154 in respect of assessment year was clearly beyond four years from the order of ITO which was sought to be amended. Hence, the applications under Section 154 was moved on 23.09.2021 was barred by limitation provided under Sub-section (7) of Section 154. In the result, the Appeal is dismissed.” 13. Aggrieved, the assessee filed appeal before the Tribunal.

"(1) Every claim for refund under this Chapter shall be made [by furnishing return in accordance with the provisions of Section 139]. [(2) * Omitted w.e.f. 01.09,2019" (“In the prescribed form and verified in the prescribed manner.”)

5 ITA No. 372/Del/2024 Mewat Grit Udyog 17. Section 219 of the Act states that, “219. Credit for advance tax.—Any sum, other than a penalty or interest, paid by or recovered from an assesses as advance tax in pursuance of this Chapter shall be treated as a payment of tax in respect of the income of the period which would be the previous year for an assessment for the assessment year next following the financial year in which it was payable, and credit therefor shall be given to the assessee in the regular assessment" 18. From above the Assessee was required to be given the credit of the Advance tax of Rs. 6,04,881/- because it was paid in excess. The amount computed by the department as Advance tax was Rs. 6,04,881/- less than the one shown in Form 26AS. 19. Section 237 of the act states that, “237. Refunds —If any person satisfies the [Assessing Officer] that the amount of tax paid by him or on his behalf or treated as paid by him or on his behalf for any assessment year exceeds the amount with which he is properly chargeable under this Act for that year, he shall be entitled to a refund of the excess.” 20. The Assessee provided submissions along with the necessary Annexures to prove his point before the Assessing officer as well as CIT(Appeals) that the amount of Rs. 7,40,377/- is still refundable to the Assessee as it is the difference between the amount as computed by the department, actually chargeable under the Act and as reflected in Form 26AS, actually paid by the Assessee for the relevant assessment year.

6 ITA No. 372/Del/2024 Mewat Grit Udyog 21. Section 240 of the Act states that,

“Where, as a result of any order passed in appeal or other proceeding under this Act, refund of any amount becomes due to the assessee, the [Assessing Officer] shall, except as otherwise provided in this Act, refund the amount to the assessee without his having to make any claim in that behalf: [Provided that where, by the order aforesaid,— (a) an assessment is set aside or cancelled and an order of fresh assessment is directed to be made, the refund, if any, shall become due only on the making of such fresh assessment; (b) the assessment is annulled, the refund shall become due only of the amount, if any, of the tax paid in excess of the tax chargeable on the total income returned by the assessee.]" 22. Clause (b) of section 240 of the Act is applicable in this case and the Assessee becomes eligible to get the refund of Rs. 7,40,377/-. The Assessment was completed and the refund of the excess was to be payable to the Assessee, which was not given. The computation of the tax payable by or refund due to the Assessee is determined only after adjusting the amounts of tax deducted at source, tax collected at source, any advance tax paid, etc. by the Assessee, from the tax, which was required to be paid by it, as per section 143(1)(c) of the Act. The refund generated to the Assessee was Rs. 65,99,880/- whereas the correct refund was Rs.73,40,257/-. Hence, refund was short paid to the Assessee by Rs. 7,40,377/-. Since the Assessee had already paid this amount in the form of Advance tax and TDS, refund was to be given to it.

7 ITA No. 372/Del/2024 Mewat Grit Udyog 23. The excess tax paid by the Assessee can clearly be seen from Form 26AS of the AY 2010-11, Advance tax paid amounting to Rs. 33,71,360/- and Tax deducted at source Rs. 44,68,604/-. The Assessee has shown the same in his previous replies also by attaching Form 26AS. 24. Reliance is being placed on the case Damco India (P.) Ltd. vs. Commissioner of Income-tax (Appeals) [2023] 153 taxmann.com 636, wherein the Co-ordinate Bench of ITAT Mumbai held that, “....the inadvertence on the part of the assessee to claim the credit for the advance tax while filing its return of income or filing the revised return of income in this regard does not absolve the Assessing Officer from its statutory duty as per section 219 to grant the credit in the regular assessment, particularly when the said amount is duly reflected in Form 26AS which forms part of the record of the revenue. Therefore, the Assessing Officer erred in not rectifying this apparent mistake when the same was pointed out by the assessee vide its application under section 154. Accordingly, the jurisdictional Assessing Officer is directed to grant the credit of advance tax of Rs. 1.10 crores paid by the assessee during the financial year 2012-13. As a result, the impugned order passed by the Commissioner (Appeals) is set aside and the grounds raised by the assessee are allowed.” 25. The question here is not claiming any deduction or exemption, simply the refund of the prepaid taxes which have been paid by the Assessee in excess to the Government treasury and ought to be refunded to the Assessee. Hence, we direct the revenue authorities to refund the amount due for the assessee along with the eligible interest as per provisions of Section 244A of the Income Tax Act, 1961.

8 ITA No. 372/Del/2024 Mewat Grit Udyog 26. In the result, the appeal of the assessee is allowed. Order Pronounced in the Open Court on 06/06/2024.

Sd/- Sd/- (Sudhir Kumar) (Dr. B. R. R. Kumar) Judicial Member Accountant Member Dated: 06/06/2024 *Subodh Kumar, Sr. PS* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR