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TMI Blog2014 (8) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... nd even if an assessment is set aside and the matter is sent back for redetermination and the AO is under legal bar to pass a fresh order because of the expiry of the period permitted under law for the purpose - assessee cannot be made to suffer on account of lapse on the part of the AO or any other officer of the Department – revenue is directed to grant refund of the amount along with interest in accordance with law after due verification – Decided in favour of Assessee. - Writ Petition No.1559 of 2005, Writ Petition No.1565 of 2005 - - - Dated:- 9-7-2014 - M. S. Sanklecha And G. S. Kulkarni,JJ. For the Petitioner : Mr. J. D. Mistry, Atul K. Jasani For the Respondent : Mr. Suresh Kumar ORDER (Per M. S. Sanklecha, J.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner for the earlier assessment years to the extent of ₹ 6.92 lacs against the total dues payable for Assessment Year 198788 at ₹ 8.92 lacs. In the result, the petitioner has deposited with the Revenue an amount of ₹ 10,44,594/pending the disposal of its appeal by the CIT(A).This deposit of ₹ 10,44,594 was in excess of the tax payable on the returned income of ₹ 7.86 lacs. c) On 14 January 1999, the CIT(A) set aside the assessment order dated 17 March 1989 for Assessment Year 1987-88 and restored the file to the Assessing officer for denovo adjudication. d) The Assessing Officer however, did not comply with the directions for reassessment in order dated 14 January 1999 of the CIT(A) and in due c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , learned Senior Counsel appearing for the petitioner in support of the petition submits: a) The impugned order dated 5 November 2004 refusing to grant the refund due on the ground that as no final assessment order has been passed amounts to collecting taxes without the authority of law. The Revenue is taking advantage of its own wrong in first not passing the assessment order and thereafter on the basis of above failure, unlawfully retaining the petitioner's property without authority of law; b) The order of the Assessing officer has been set aside by order dated 14 January 1999 of CIT(A) and the proceedings for A.Y. 1987-88 was remanded for denovo adjudication. The Assessing Officer was obliged to do the reassessment within a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act which reads as under :- 240. Where, as a result of any order passed in appeal or other proceedings under this Act, refund of any amount becomes due to the assessee, the Assessing Officer shall, except as otherwise provided in this Act, refund the amount to the assessee without his having to make any claim in that behalf: [Provided that where, by the order aforesaid, (a) an assessment is set aside or cancelled and an order of fresh assessment is directed to be made, the refund, if any, shall become due only on the making of such fresh assessment; (b) the assessment is annulled, the refund shall become due only of the amount, if any, of the tax paid in excess of the tax chargeable on the total income returned by the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e failure to make an order of assessment after the earlier assessment made is set aside or nullified in appropriate proceedings. If the assessing authority cannot make a fresh assessment in accordance with the provisions of the Act it amounts to deemed acceptance of the return of income furnished by the assessee. In such a case the assessing authority is denuded of its authority to verify the correctness and completeness of the return, which authority it has while framing a regular assessment. It must accept the return as furnished and shall not in any event raise a demand for payment of further taxes. Accepting the income as disclosed in the return of income furnished by the assessee, it must refund to the assessee any tax paid in excess o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund can be granted to an assessee consequent to an order passed in an appeal unless the Assessing Officer passes a fresh assessment order is accepted then in that event Revenue would be able to deprive all assessees of their property without the authority of law by by merely stating that it are helpless on account of its failure to pass an assessment order consequent to an order of appeal. The Revenue's submission is an attempt to justify its conduct by taking advantage of its own wrong to deprive the citizen of its money. 8) Mr. Mistry, the learned Senior Counsel during the course of his submissions also invited our attention to the decision of the Punjab Haryana High Court in Bharti Engineering Corporation vs. Union of India and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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