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TMI Blog2004 (5) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... be refunded to the assessee, since its retention may offend article 265 of the Constitution - writ petition has to be dismissed - - - - - Dated:- 12-5-2004 - Judge(s) : M. M. KUMAR. JUDGMENT M.M. Kumar J.-The short question of law raised in this petition filed under article 226 of the Constitution is whether in the facts and circumstances of the case and in view of the provisions of section 194C of the Income-tax Act, 1961 (for brevity, "the Act") read with article 265 of the Constitution, the respondents are bound in law to make the refund of amount of Rs. 8,252 which has been paid by the petitioner by way of advance payment of tax, inter alia, under section 210 of the Act for the assessment year 1981-82 for which no regular asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed on April 24, 1982. Accordingly, the petitioner deposited Rs. 2,684 on June 12, 1984. Thus, the total amount deposited by the petitioner was Rs. 9,398 (Rs. 6,760 + Rs. 2,638) as tax for the assessment year 1981-82. It is the admitted case of the parties that no assessment order has been passed by the Income-tax Officer on the basis of the return filed by the petitioner within the stipulated period of two years as envisaged by the provisions of section 153 of the Act. As a result, the petitioner had made a claim of refund of Rs. 9,398 which he had deposited as advance tax. The writ petition was filed primarily placing reliance on a judgment of this court in the case of Deep Chand Jain v. ITO [1984] 145 ITR 676 (P H) because in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... source. The Act provides for the manner in which advance tax is to be paid and penalises any assessee who makes a default or delays payment thereof. Similarly the deduction of tax at source is also provided for in the Act and failure to comply with the provisions attracts the penal provisions against the person responsible for making the payment. It is, therefore, quite apparent that the Act itself provides for payment of tax in this manner by the assessee. The Act also enjoins upon the assessee the duty to file a return of income disclosing his true income. On the basis of the income so disclosed, the assessee is required to make a self-assessment and to compute the tax payable on such income and to pay the same in the manner provided by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... losed in the return of income furnished by the assessee, it must refund to the assessee any tax paid in excess of the liability incurred by him on the basis of income disclosed. Even if the tax paid is found to be less than that payable, no further demand can be made for recovery of the balance amount since a fresh assessment is barred. In other words, the tax paid by the assessee must be accepted as it is, and in the event of the tax paid being in excess of the tax liability duly computed on the basis of return furnished and the rates applicable, the excess shall be refunded to the assessee, since its retention may offend article 265 of the Constitution." In view of the above, the writ petition has to be dismissed as per the law laid dow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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