9911796707
TMI Blog1998 (8) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000 to Shri P.S. Khandelwal. The Accountant of the assessee by inadvertent mistake credited the sum of Rs. 48,000 in commission account instead of debiting the same. Thus the aforesaid mistake resulted in excess income having been shown by the assessee to the tune of Rs. 96,000. The assessee, therefore, requested that the assessment be framed at Rs. 1, 12,940 (2,08,940 - 96,000). The Assessing Officer did not accept the above request of the assessee on the ground that the assessee should have filed the revised return under section 139(5). He further observed that if the above claim of the assessee is accepted, the assessment would result in refund. As per section 143(3) no refund can be given. He, therefore, rejected the above claim of the assessee. 3. On appeal, the CIT(Appeals) directed the Assessing Officer to allow the above claim of Rs. 96,000 and be opined that no revised return was required separately when the genuineness of the mistake pointed out by the assessee is not in dispute. He further held that the assessee is entitled to refund as claimed during the course of assessment proceedings. Against the above direction of the CIT(Appeals) the Revenue is in appeal. 4. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat if the interpretation as suggested by the learned Departmental Representative is accepted it will make the provision of section 237 of the Income-tax Act redundant. Section 237 provides for grant of refund or, the basis of tax chargeable from the assessee and tax paid by the assessee. He further stated that the decision of Hon'ble Bombay High Court in the case of LML Ltd. relied upon by the learned Departmental Representative is not at all on the issue under consideration. The issue before the Hon'ble Bombay High Court was that the petitioners had claimed refund under section 143(1)(a). On such petition, in an interim order passed, their lordships of the Bombay High Court directed the Income-tax Department. He stated that the Hon'ble High Court has only passed an interim order to grant the refund and no Law is laid down by their lordships and moreover the issue before their lordships was altogether different then the issue in the present appeal. He further stated that the decision of the I.T.A.T., Nagpur Bench in I.T.A. No. 539/Nag./96 was an order by S.M.C. while a contrary view was already taken by the I.T.A.T., Nagpur Bench in I.T.A. No. 47/Nag./94 and also in I.T.A. No. 72 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of total income or loss of the assessee taking into account all the relevant material which are available on record. On the basis of such assessment he has to determine the sum payable by the assessee. Now the question is what is the meaning of the phrase "determined the sum payable by him on the basis of such assessment". The contention of the learned Departmental Representative is that the above language is very clear and it only empowers the Assessing Officer to work out the sum receivable from the assessee. Thus it debars the Assessing Officer to grant any refund. The contention of the learned counsel for the assessee is that the use of the words "to determine the sum payable" only denotes the determination of gross tax worked out on the basis of assessed income. From this gross tax, the tax paid by the assessee has to be adjusted and if the assessee has paid less tax than the sum determined above, the balance remains payable from the assessee. But if the assessee has already paid more tax than the tax determined on regular assessment, the balance is refundable to the assessee. To support his contention he relied upon section 143(4) also which talks about the adjustment of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake provision of section 237 redundant. We find that this issue is already considered by the I.T.A.T., Nagpur Bench in the case of Nagpur Alloys Castings Ltd. It has been held is under: "There was also no merit in the argument that under section 143(3), the Assessing Officer could only raise a demand and he could not order for a further refund over and above the refund to which the assessee would have been entitled under section 143(1)(a). Section 143(4) talks, 'if no refund is due on regular assessment', this obviously means a refund may be possible under the regular assessment whether that refund is granted to the assessee or whether the refund is treated as tax payable by the assessee is an act subsequent to the completion of the assessment." The above decision is followed by the I.T.A.T., Nagpur Bench in the case of Deepak Chhabra. The Departmental Representative heavily relied upon the decision of the I.T.A.T., Nagpur in the case of Shri Niranjan Bhatt, Akola in ITA No. 539/Nag./96. This decision is by a Single Member of Nagpur Bench while the above two decisions are by Division Bench. Moreover in the case of Niranjan Bhatt the Assessing Officer had issued notice under s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
