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TMI Blog2021 (12) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax assessee had failed to file returns in time. The second respondent or the Jurisdictional Assessing Officer ought to have issued notice under Section 148 of the IT Act, 1961 on or before 31.03.2018 for the assessment year 2011-12 as there would have been a prima-facie presumption that income had escaped assessment for the aforesaid assessment year. The petitioner initially made an attempt to file a return belatedly before the second respondent on 26.02.2015. This return naturally could not have been accepted as it was beyond the period of limitation prescribed under Section 139 of the IT Act, 1961. In this case, the petitioner has approached the first respondent under Section 119 of the IT Act, 1961 on 29.08.2018 with a request for adjustment of the tax Directorate source and for refund of the amount. It would have been different if the application under Section 119 was made to claim exemption for the first time after the returns were filed in time and after the period prescribed for revising the assessment had expired, where the assessment had attained finality. Where no return was filed, it was incumbent on the part of the second respondent or the Jurisdictional Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the aforesaid assessment year amounting to ₹ 8,61,892, the petitioner was entitled for a refund of 37,20,790/- [45,82,682-8,61,892]. It is submitted that the respondent has wrongly reached the request of the petitioner. 4. Appearing on behalf of the petitioner, learned counsel for the petitioner submits that the reason given in the impugned order stating that the application was beyond the time prescribed under Board's Circular No. 9/2015 issued in F.No.312/22/2015-OT dated 09.06.2015 with regard to condonation of delay refund claim under Section 119 (2) (b) is incorrect inasmuch as the return itself was filed for the first time on 26.02.2015 beyond the period of limitation, and therefore, the petitioner should have been allowed to file the returns for the purpose of refund under Section 237 of the IT Act, 1961. It is submitted that Section 237 of the Act is an independent provision and is not dependent on the returns and therefore, the fate of the refund claim of the petitioner cannot be tied down to the above circular supra. It is, therefore, submitted that this writ petition deserves to be allowed and impugned order is liable to be quashed with consequential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner is a regular income assessee and is not a novice. It is submitted that the petitioner is in Hotel Business of ought to filed returns either under Section 139 (1) of IT Act, 1961 in time or within the extended period under Section 139 (4) of the IT Act, 1961. 9. It is submitted that in this case, admittedly the respective dates expired on 31.10.2012 and 31.03.2013 and therefore, the attempt of the petitioner to file a return on 26.02.2015 was of no consequence. It is submitted that the assessment is deemed to have been completed and there is no question of entertaining afresh return under Section 139 beyond the period of limitation and therefore, the consequential refund also cannot be entertained in the light of the above Board's Circular. 10. Learned counsel for the respondents further submits that the petitioner has also not given any reasons as to how the respondent can ignore Section 119 (2) (b) of the IT Act, 1961. It is further submitted that petition under Section 119 of the IT Act, 1961 was filed beyond six years period and therefore, even on this count the impugned order cannot be interfered and therefore, the writ petition was liable to be dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 139 (1) and 139 (4) for efficient management of the work of assessment and collection of revenue, The Central Board of Direct Taxes may issue general or special order under Section 119 of the IT Act, 1961 which reads as under:- 119. Instructions to subordinate authorities:- 1. The Board may, from time to time, issue such orders, instructions and directions to other income- tax authorities as it may deem fit for the proper administration of this Act, and such authorities and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the Board: Provided that no such orders, instructions or directions shall be issued- (a) so as to require any income- tax authority to make a particular assessment or to dispose of a particular case in a particular manner; or (b) so as to interfere with the discretion of the Deputy Commissioner (Appeals) or the Commissioner (Appeals) in the exercise of his appellate functions. 2. Without prejudice to the generality of the foregoing power,- (a) the Board may, if it considers it necessary or expedient so to do, for the purpose of proper and efficient mana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 10 lakhs for any one assessment year. The Principal Chief Commissioners of Income-tax/Chief Commissioners of Income-tax (Pr.CCsIT/CCsIT) shall be vested with the powers of acceptance/rejection of such applications/claims if the amount of such claims exceeds ₹ 10 lakhs but is not more than ₹ 50 lakhs for any one assessment year. The applications/claims for amount exceeding ₹ 50 lakhs shall be considered by the Board. 3. No condonation application for claim of refund/loss shall be entertained beyond six years from the end of the assessment year for which such application/claim is made.This limit of six years shall be applicable to all authorities having powers to condone the delay as per the above prescribed monetary limits, including the Board. A condonation application should be disposed of within six months from the end of the month in which the application is received by the competent authority, as far as possible. 4. In a case where refund claim has arisen consequent to a Court order, the period for which any such proceedings were pending before any Court of Law shall be ignored while calculating the said period of six years, provided such c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Circular. 9. The Board reserves the power to examine any grievance arising out of an order passed or not passed by the authorities mentioned in para 2 above and issue suitable directions to them for proper implementation of this Circular. However, no review of or appeal against the orders of such authorities would be entertained by the Board. 15. A reading of the above Circular issued Section 119 (2) (b) as extracted above indicates that avoiding genuine hardship The Board may in any case or by general or special order authorize any income authority not being Commissioner Appeals to admit an application or for exemption, deduction, refund or any claim under this Act after the expiry of period of limitation specified for making such application or claim and deal with the same on merits in accordance with law. Further, as per Para 3 of the Circular, No condonation application for claim of refund/loss shall be entertained beyond six years from the end of the assessment year for which such application/claim is made.This limit of six years shall be applicable to all authorities having powers to condone the delay as per the above prescribed monetary limits, includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT Act, 1961, to determine the tax liability of the petitioner. As this was not done, case deserves to be remitted back to the second respondent to first finalize the assessment of the petitioner for the assessment year 2011-12 within a period of three months from the date of receipt of copy of this order. Failure to issue a notice under Section 148 of the IT Act, 1961, cannot be to the prejudice of the petitioner, if ultimately it is found that petitioner was entitled to a refund. However, liberty is given to penalise the petitioner for failure to file returns in time and for levy of interest if any. 21. Respondents are therefore, directed to examine the refund claim independently and pass appropriate orders within a period of three months from the date of receipt of copy of this order. 22. The second respondent or the Jurisdictional Assessing Officer is, therefore, directed to first pass an assessment order within a period of three months from the date of receipt of copy of this order. It is found that petitioner was indeed entitled to refund of the tax paid in excess, such refund shall be made within a period of three months thereafter, dully appropriating the amount out s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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