RAJASTHAN ADVANCE JOINT CARE TRUST,JAIPUR vs. ITO, EXEMPTION, WARD 1, JAIPUR, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 137/JP/2023 fu/kZkj.k o"kZ@Assessment Year : 2011-12. cuke Rajasthan Advance Joint Care Trust, The Income Tax Officer Vs. B-56, Unnati Tower, Central Spine, (Exemptions),Ward-1, Vidhyadhar Nagar, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. AABTR 5387 G vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Mukesh Khandelwal (CA) jktLo dh vksj ls@ Revenue by : Smt. Monisha Choudhary (Addl.CIT)

lquokbZ dh rkjh[k@ Date of Hearing : 27/04/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 7/06/2023 vkns'k@ ORDER

PER: SANDEEP GOSAIN, J.M. This appeal by the assessee is directed against the order dated 17.01.2023 of ld. CIT (A), National Faceless Appeal Centre (NFAC), Delhi passed under section 250 of the IT Act for the assessment year 2011-12. The assessee has raised the following grounds :-

2 ITA No. 137/JP/2023 Rajasthan Advance Joint Care Trust, Jaipur.

for the purpose of providing health services in the field of Orthopedics. During the

year under consideration, the assessee had not filed its return of income under

section 139(1) of the I.T. Act, 1961. However, later on it received notice under

section 148 of the IT Act and in response there to Income tax return was filed and

the assessment was completed under section 147/143(3) vide order dated

13.11.2018. The assessee had made deduction of TDS amounting to Rs. 1,39,001/-

and self assessment tax payment of Rs. 500/- and, therefore, claimed refund as the

returned income as well as the assessed income was Nil. The AO did not allow the

credit of such sums while passing the assessment order. Therefore, assessee moved

an application under section 154 of the IT Act for allowing credit of TDS and self

assessment tax paid, but the same was declined by the AO by holding that as per

section 239(1) the claim of refund was required to be made by the assessee within

one year from the last day of relevant assessment year and action initiated under

section 148 of the IT Act is for the benefit of the revenue only and assessee cannot

take advantage of the same. Aggrieved by the order of the AO, assessee preferred

appeal before ld. CIT (A). However, the ld. CIT (A) also dismissed the appeal of the

assessee.

gone through orders of the revenue authorities and the case laws cited therein. We

3 ITA No. 137/JP/2023 Rajasthan Advance Joint Care Trust, Jaipur.

have meticulously gone through the facts of the case and also case laws cited by

both the parties. From the record, we noticed that it is an admitted fact that

initially the assessee had not filed any return of income but subsequent to the

receipt of notice under section 148 of the IT Act, the assessee had duly filed its

return of income under section 139 and after filing of the return, the AO also framed

assessment as per provisions of section 143(3) of the IT Act. Before proceeding

further, it is necessary to evaluate the provisions of section 143(3) of the Act as the

same goes to the root of the case, therefore, the same is reproduced herein below :-

143(3) : “ On the day specified in the notice issued under sub-section (2), or as soon afterwards as may be, after hearing such evidence as the assessee may produce and such other evidence as the Assessing Officer may require on specified points, and after taking into account all relevant material which he has gathered, the Assessing Officer shall by an order in writing, make an assessment of the total income or loss of the assessee, and determine the sum payable by him or refund of any amount due to him on the basis of such assessment.”

From the plain reading of the above provisions of section 143(3) of the Act, it clearly

authorizes the AO to determine the sum payable by assessee or refund of any

amount due to him on the basis of such assessment. Therefore, in our view, the

assessee was clearly within his power to claim refund of excess payment of tax

whether in the form of TDS or in the form of Advance/Self-Assessment tax. But in

the present case, the AO while denying the refund of any amount due to the

assessee on the basis of assessment had rather stated that the proceedings of

reassessment are not for the benefit of assessee and it is for the benefit of

4 ITA No. 137/JP/2023 Rajasthan Advance Joint Care Trust, Jaipur.

department only. We have gone through the judgment cited in the orders passed

by the revenue authorities as well as cited by both the parties before us. Upon

considering the judgments in the cases of Sun Engineering Works Pvt. Ltd. 198 ITR

297 (SC), K. Sudhakar S. Shanbhag, 241 ITR 865 (Bombay) and CIT vs. State Agro

Development Corporation, 248 ITR 487 (J&K), we find that all the above judgments

are of the opinion that the reassessment proceedings are not for the benefit of the

assessee and thus the assessee cannot seek review of his original assessment or

cannot raise any claim not related with the issues on which assessment proceedings

have been initiated. However, the fact of the present case are altogether different

as none of the above judgments (supra) addresses the issue of granting credit of

excess TDS/Tax deposited and, therefore, paramateria contained in these judgments

are different from the paramateria contained as per the present case and thus the

same are distinguishable and not found applicable in the present case. Whereas on

the contrary, the ld. A/R relied upon the decision of Hon’ble Allahabad High Court in

the case of CIT vs. Vali Brothers, 282 ITR 149 (Allahabad) in which the assessee had

filed return in response to notice under section 148 of the Act in which he had

claimed refund of advance tax paid by him. The proceedings were dropped and no

amount was worked out as refundable to the assessee. Therefore, Hon’ble High

Court while sustaining the view of the ITAT had held that excess amount be

refunded to the assessee. As per the facts of the present case, the present

controversy before us is on better footing as in the case of CIT vs. Vali Brothers

(supra) the Hon’ble High Court while sustaining the view of the ITAT that excess

amount be refunded to the assessee had held that dropping of reassessment

proceedings is equivalent to passing of an order. However, in the instant case, the

5 ITA No. 137/JP/2023 Rajasthan Advance Joint Care Trust, Jaipur. case of the assessee was properly assessed by accepting the ITR filed and order was consequently passed under section 143(3) of the Act. Therefore, in our view the principles laid down in the case of CIT vs. Vali Brothers (supra) are squarely applicable to the facts of the present case and thus excess amount deposited by the assessee in the form of TDS and Self-assessment tax deserves to be refunded to the assessee along with interest as per law. 5. In the result, this appeal of the assessee is allowed.

Order pronounced in the open court on 7/06/2023.

Sd/- Sd/- ¼lanhi xkslkbZ½ ¼ jkBkSM+ deys'k t;arHkkbZ ½ (RATHOD KAMLESH JAYANTBHAI) (SANDEEP GOSAIN) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 7/06/2023. Das/ आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Rajasthan Advance Joint Care Trust, Jaipur. 2. izR;FkhZ@ The Respondent- The ITO Exemptions Ward-1, Jaipur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File {ITA No. 137/JP/2023}

vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत

6 ITA No. 137/JP/2023 Rajasthan Advance Joint Care Trust, Jaipur.