9911796707
TMI Blog1984 (8) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... rculars, Vol. 1, 1980 edn., p. 550] of the CBDT, the last date for filing of the return was 31-7-1972. The assessee also filed a revised return on 12-3-1975. At the time of the assessment, the addition proposed by the ITO, being more than Rs. 1,00,000, a draft order under section 144B of the Income-tax Act, 1961 ('the Act'), was prepared and served on the assessee on 11-3-1976. The draft assessment order was forwarded to the IAC along with the objections and the IAC issued his direction to the ITO vide his letter dated 14-7-1976 which was received by the ITO on 21-7-1976. In pursuance to the direction, the ITO passed the order on the same day on 21-7-1976. Similarly, for the assessment year 1974-75, the assessee filed its return of income o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Jab.) of 1983. 5. In the hearing before us, the same arguments, as placed before the lower authorities and before the Tribunal, have been repeated. On careful consideration of the rival submissions in the light of the papers on our record, we are of the view that the claim of the assessee has not been dealt with by the authorities below in the proper perspective. Section 240 of the Act provides for refund of the amount to the assessee as a result of any order passed in appeal. Section 241 of the Act, however, gives power to the ITO to withhold refund of the amount if he was of the opinion that the grant of the refund was likely to adversely affect the revenue. Such power, however, is to be exercised only with the previous approval of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending. In this particular case, the order of the Commissioner (Appeals) holding the assessment in question as time barred being a subject-matter of appeal before the Tribunal, the order of the ITO under section 241 with the previous approval of the Commissioner cannot be questioned. That being the position, we have to hold that the ITO was justified in withholding the refund till the disposal of the appeals before the Tribunal. To that extent, we have to hold that there is no justification for the assessee to object to the order of the ITO withholding the refund for the above two years vide his order dated 6-4-1979. 6. However, that is not the end of the matter. The appeals filed by the revenue against the order of the Commissioner (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 237. The ITO, by virtue of section 240, was required to make that refund and the assessee was not required to prefer any claim for refund in the manner prescribed in section 239. The appeal preferred by the assessee to the AAC was, therefore, an appeal which fell within the ambit of clause (n) of section 246 of the Act. (ii) That the mere fact that the obligation imposed by section 240 of the Act upon the ITO to refund the amount to the assessee without his having to make any claim in that behalf, can be enforced, even by a writ of mandamus under article 226 of the Constitution or even by a civil suit, does not deprive the assessee of the right of appeal under section 246. Just as an appeal being a creature of the statute would not lie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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