2011 (7) TMI 528 - HC - Income Tax

Refund - Proviso to Section 240(a) - Held that - As per the decision of CIT vs. Shelly Products and another 2003 (5) TMI 4 - SUPREME Court wherein held that the proviso to Section 240 is only declaratory and the said proviso was inserted to over come the difficulty relating to the various decisions and circulars issued by the department. In the present case having regard to the order passed by the Tribunal which has been confirmed by this Court earlier it is clear that the very notice initiating the proceedings was set aside and wherefore the case would not fall within the ambit of the proviso to Section 240(a) - the substantial question of law is answered against the revenue and in favour of the assessee.

Summary

Issues:
1. Appeal against the order allowing refund under Section 240(a) of the Income Tax Act.
2. Interpretation of the proviso to Section 240(a) in light of the Supreme Court judgment.
3. Validity of the notice for initiating proceedings under Section 148.

Analysis:
1. The appeal was filed by the revenue challenging the ITAT's order allowing the assessee's refund under Section 240(a) of the Income Tax Act. The ITAT had set aside the order of the first Appellate Authority which denied the refund based on the proviso to Section 240(a). The issue revolved around whether the refund becomes due only upon making a fresh assessment as per the proviso.

2. The substantial question of law admitted for consideration was whether the ITAT was correct in reversing the findings of the Assessing Officer and the Appellate Commissioner. The appellants argued that the assessee's case fell within the provisions of Section 240(a) and cited a Supreme Court judgment to support their contention. On the other hand, the respondent contended that since the notice for initiating proceedings under Section 148 had been set aside, the case did not fall under Section 240(a) or (b) of the Act.

3. The Court carefully considered the arguments presented by both parties and examined the relevant provisions of Section 240. Referring to the Supreme Court judgment in Commissioner of Income Tax vs. Shelly Products, the Court held that the proviso to Section 240 was inserted to address difficulties arising from departmental decisions and circulars. The Court noted that the notice initiating proceedings had been set aside, indicating that the case did not fall within the proviso to Section 240(a). Consequently, the Court ruled in favor of the assessee, stating that the ITAT's decision was not contrary to the Supreme Court's judgment in Commissioner of Income Tax vs. Shelly Products.

In conclusion, the appeal was dismissed as devoid of merits, affirming the ITAT's decision to allow the refund to the assessee under Section 240(a) of the Income Tax Act.