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TMI Blog2021 (9) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of the concerned authority on the base of the return furnished which may have a bearing on the quantum of the refund. In the present case, the assessee had not paid tax voluntarily. From the beginning the assessee had contested any collection of tax from its payments by KSS. The Superintendent of taxes however insisted that such deduction be made and the amount so deducted be deposited with the government revenue. The assessee had every right to dispute such collection and such dispute when raised in the return filed, had to be adjudicated by the Superintendent. The amount so collected cannot be retained without adjudication. Not framing the assessment till the return gets time barred cannot be the ground for retaining such tax. The Superintendent not having framed assessment, must refund the amount in question to the petitioner with statutory interest - the respondent No.4 shall refund the said sum of ₹ 24,21,007/- to the petitioner with interest as prescribed under the Act - petition disposed off. - WP(C) No.139/2021 - - - Dated:- 31-8-2021 - HON BLE CHIEF JUSTICE MR. AKIL KURESHI HON BLE MR. JUSTICE S.G. CHATTOPADHYAY For Petitioner(s) : Mr. T.K. Deb, Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecified rate. It was, therefore, necessary that KSS deducts 4% of the gross amount of bill at the time of payments on provisional basis. 5. According to the petitioner, the case was covered under the service tax regime and no value added tax was to be paid. Despite this, in response to the notice issued by the respondent No.4 the petitioner also filed the returns under TVAT Act for the assessment period 2010-11 to 2013-14 on 19.09.2014. The company prayed for the refund of amount of ₹ 24,21,007/- collected for the period during 2011-12. Since the petitioner did not receive any response to its returns filed and the request for refund of the tax collected in excess, the petitioner wrote to the respondent No.4 on 27.05.2015 and reminded that despite submission of all documents the assessment for the period 2010-11 to 2013-14 is pending and that the Superintendent may fix a date of hearing at the earliest. There was no response to this notice by the respondent No.4. The petitioner, therefore, wrote to the Superintendent on 19.04.2018 and reiterated the request for completion of assessment and refund of amount of ₹ 24,21,007/- collected. 6. In response to the said let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondents is that the petitioner had appeared before the Superintendent in response to a notice dated 12.02.2014 but had prayed for adjournment. The case of the respondents as emerging from the affidavit-in-reply is as under: That, with regard to the statements made in paragraph No.14 and 15 of the Writ Petition, I say that, the Works Contract tax deducted by M/S KSS for the bill of the petitioner was provisional. Without making any assessment of the dealer/petitioner the actual amount of tax cannot be ascertained and the claim raised by the petitioner cannot be proved conclusively . It is further submitted that the dealer is selected for assessment on random basis and after completion of assessment the actual tax liability of the dealer is determined and after assessment if it is found that the dealer is entitled to net the refund the same is done. xxx xxx xxx It is pertinent to mention here that the contention raised by the Petitioner that the assessment was kept pending is not true. The selection of dealer for assessment is done randomly and in the present case also the the assessment could not be done within time as the petitioner was not selected for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 31 and 32 shall be made after expiry of five years from the end of the tax period to which the assessment relates. Section 34 which pertains to turnover escaping assessment and permits assessment of such turnover, also contains a similar limitation clause in sub-section (2) which provides that no order of assessment shall be made under sub-section (1) after the expiry of five years from the end of the year in respect of which the tax is assessable. In the present case, the Superintendent himself conveyed to the petitioner under a letter dated 23.04.2018 that the assessment for the period 2010-11 to 2012-13 can no longer be made since the time limit for scrutiny assessment was over. Whatever be the reason which prevented the Superintendent from completing the assessments within the statutory period permitted, once the assessment gets time barred it would no longer be possible for the Superintendent to withhold provisionally collected tax which was disputed by the petitioner at the very outset. As stated by the respondents in the affidavit-in-reply the petitioner in addition to furnishing documents did not appear for physical hearing before the Superintendent. This alleged non-coo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the income so disclosed, the assessee is required to make a self assessment and to compute tax payable on such income and to pay the same in the manner provided by the act. Thus the filing of the return on payment of tax computed on the basis of the income disclosed amounts to an admission of tax liability by the assessee. Charging of such tax under section 4 of the Income Tax Act is thus not dependent on the assessment being made. However one cannot lose sight of the fact that the failure or inability of the revenue to frame an assessment should not place the assessee in a more disadvantages position then what it would have been an assessment had been made. In a case where an assessee chooses to deposit by way of abundant caution advance tax or self assessment tax which is in excess of his liability on the basis of the return furnished or there is any arithmetical error or inaccuracy, it is open to him to claim refund of the excess tax paid in the course of assessment proceeding. Section 240 of the Act enjoins an obligation on the revenue to refund the amount to the assessee without his having to make any claim in that behalf. In appropriate cases it is open for the assessee to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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