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TMI Blog1989 (5) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... vides that the return may be furnished before the end of two years from the end of the assessment year. However, the assessee filed a return only on 16-5-1983 showing a total income of Rs. 2,990 which was below the maximum amount not liable to tax. Thereupon the ITO issued a notice u/s 148 on 19-9-1983 in response to which the assessee intimated to the ITO that the return filed earlier could be treated as a return in response to the notice u/s 148. Yet the Income-tax Officer passed the following order :-- "The return of income for the assessment year 1980-81 has been filed by you on 16-5-1983. The income returned is Rs. 2,990. As the return of income has been filed beyond the time limit prescribed for completion of assessment u/s 153(1)(i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ranchhodas v. CIT [1968] 68 ITR 842 (Bom.) and Anglo-French Textile Co. Ltd. v. CIT [1950] 18 ITR 906 (Mad.) to contend that the provisions of section 148 were only for the benefit of the revenue and not for the assessee. It was also contended that the appeal was not maintainable because there was no order passed by the Income-tax Officer as he had only lodged the return. On the other hand, it was contended on behalf of the assessee that the advance tax paid could not be retained by the revenue without any authority of law and reliance was placed on the decision in the case of Deep Chand Jain v. ITO [1983] 15 Taxman 522 (Punj. Har.). 5. On a consideration of the rival submissions, we find it unnecessary to interfere with the order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It cannot be gainsaid that no tax should be levied or collected except by authority of law and consequently the revenue will not be justified in retaining the advance tax paid when it is clear that there was no tax due from the assessee. [See Deep Chand Jain's case]. Thus while the revenue may be right in claiming that the AAC should not have directed that an assessment should be completed, it is not right in claiming that the advance tax paid will be retained without the authority of law. It only comes to the question of denying the refund on the ground that the application for refund is not in the prescribed form and has not been made within the time prescribed. There are instructions of the CBDT to the Income-tax Officer to admit belate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected on the technical ground that the application was not made in the prescribed form but was made by filing a return as such. In these circumstances, we have to read the order of the AAC as a direction to entertain a belated application for refund and return the amount which cannot be retained as lawfully assessable tax. When an order is just on merits and does not lead to any miscarriage of justice, it should not be over-turned only on technical grounds. One should think that in the light of the just effect of the order and the administrative instructions given to the Income-tax Officers, this appeal ought not to have been filed at all. We therefore decline to interfere with the order of the AAC. The appeal is dismissed. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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