9911796707
TMI Blog2022 (8) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... as claimed in return of income dated 11th September, 2015 along with applicable interest under Section 244A of the Income Tax Act, 1961 ['the Act'] for the Assessment Year 2015-16. 2. On the last date of hearing, while accepting notice, Mr. Abhishek Maratha, learned senior standing counsel on behalf of the Respondents-Revenue had stated that Central Processing Centre (CPC), Bangalore had no role to play in the present case within extended time limit specified in ITBA Instruction dated 08th October, 2018 and that refund had not been issued, as the Assessing Officer had to process the return before the due date prescribed under Section 143(1) of the Act after taking approval of CCIT. However, Mr. Abhishek Maratha on the said date of hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot process the return and suggested to process the same through manual order after administrative approval of PCCTT/CCIT as per CBDT instruction No 5/2018 and send the proposal to enable the processing /uploading of the case in the system to Pr. DGIT(s)/ADG(s)-3 as per the process described in ITBA processing instruction no 4. The Instruction given by the System was perused however, it was observed that ITBA Processing Instruction No. 4, the threshold date to take action for processing on time barred ITRs was up to 31.03.2019 which was further extended up to 30.11.2021 by the CBDT vide Order F. No. 225/98/2020-ITA-II, dated 30-09-2021 however since grievance of assessee was filed on 07.12.2021 i.e. after the expiry of the extended date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut that as the petitioner's return was not processed due to technical reason not attributable to assessee, no refund was issued. He emphasises that in the present case, the petitioner had not applied for refund within the extended period of time for processing of the return. 5. He also relies upon the judgment of the Supreme Court in Assistant Commissioner of Income Tax vs. Rajesh Jhaveri Stock Brokers Private Limited, (2008) 14 SCC 208, wherein it has been held as under:- "15. In the scheme of things, as noted above, the intimation under section 143(1)(a) cannot be treated to be an order of assessment. The distinction is also well brought out by the statutory provisions as they stood at different points of time. Under section 143(l)(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing provision. Therefore, there being no assessment under section 143(1)(a), the question of change of opinion, as contended, does not arise." 6. He contends that till the Court or the CBDT extends the time for processing of the return, the refund cannot be granted to the petitioner. COURT'S REASONING SINCE THE ASSESSING OFFICER HAS FAILED TO PROCESS THE RETURN OF THE PETITIONER FILED IN ACCORDANCE WITH LAW WITHIN THE PRESCRIBED TIME, THE RETURN AS FILED WILL HAVE TO BE TREATED AS 'DEEMED INTIMATION' AND AN ORDER UNDER SECTION 143(1) OF THE ACT. 7. This Court is of the view that after filing of the return (under Section 139 of the Act) along with due verification (under Section 140 of the Act) and paying taxes as per return (under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under this Act for that year, he shall be entitled to a refund of the excess." ASSESSEE NEED NOT FILE ANY SEPARATE CLAIM FOR REFUND AS THE SAME IS DEEMED TO HAVE BEEN INCORPORATED IN THE RETURN FILED BY THE ASSESSEE ITSELF. 11. This Court is of the view that the assessee need not file any separate claim for refund as the same is deemed to have been incorporated in the return filed by the assessee itself. 12. Further, prior to expiry of time for processing of return or failure of the respondent to process the return within the stipulated and or extended time, the petitioner has no right to expect refund. In fact, upon respondent's failure to process an assessee's return within time, the right to refund arises by operation of law. JUDGM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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