The question for
consideration would be whether an intimation under Section 143(1)(a) of
the Act would constitute assessment so as to disentitle the assessee to
file the revised return. It is to
be noted that the expressions “intimation” and “assessment order” have
been used at different places. The contextual difference between the two
expressions has to be understood in the context the expressions are
used. Assessment is used as meaning sometimes “the computation
of income”, sometimes “the determination of the amount of tax payable”
and sometimes “the whole procedure laid down in the Act for imposing
liability upon the tax payer”. 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 intimation under
section 143(1)(a) was deemed to be a notice of demand under section 156,
for the apparent purpose of making machinery provisions relating to
recovery of tax applicable. By such application
only recovery indicated to be payable in the intimation became
permissible. And nothing more can be inferred from the deeming
provision.
Once that is so, there was no regular assessment framed in the present case. Therefore, the assessee for assessment year 2005-06 could file the revised return after complying with the provisions of Section 139(5) of the Act up to 31.3.2007. The revised return filed on 26.9.2006 was thus validly filed within limitation.
HIGH COURT OF PUNJAB AND HARYANA
Tarsem Kumar
v.
Income-tax Officer
CWP NO. 19906 OF 2011
JULY 30, 2012
JUDGMENT
Ajay Kumar Mittal, J. – The claim
of the petitioner is to quash the orders dated 3.3.2009 (Annexure P-8),
dated 18.8.2011 (Annexure P-18) and dated 6.9.2011 (Annexure P-20) and
to refund the amount of excess tax paid along with interest in terms of revised return filed on 26.9.2006 (Annexure P-3).
2. Put shortly, the facts
necessary for adjudication of the present petition as narrated therein
are that the petitioner deposited income tax for the assessment year 2005-06 vide challan
dated 11.5.2004 (Annexure P-1) amounting to Rs. 3,60,000/-. The
petitioner filed his original return for the assessment year 2005-06 on
26.7.2005 (Annexure P-2) declaring taxable income of Rs. 1,97,960/- on
which the petitioner had deposited Rs. 12,336/- as tax and Rs. 1,188/-
as interest. However, the petitioner had omitted to claim the credit of
Rs. 3,60,000/-. Thereafter, the petitioner filed a revised return on 26.9.2006 (Annexure P-3) claiming refund of Rs. 3,61,188/-. An application
dated 7.3.2008 (Annexure P-4) was submitted by the petitioner and
thereafter various reminders were sent to the Assessing Officer for
refund of the said amount. The original return of the petitioner was
processed under Section 143(1)(a) of the Income Tax Act,
1961 (in short “the Act”) on 8.12.2005 and a refund of Rs. 240/- was
issued vide voucher dated 29.12.2005. Thereafter the petitioner
submitted various applications to the authorities for refund of Rs.
3,61,188/- but to no avail. However, vide order dated 18.8.2011
(Annexure P-18), respondent No.3 declined the claim of the assessee for
refund on the ground that the revised return filed by him was not a
valid return. The petitioner thereafter sent a letter dated 6.9.2011
(Annexure P-19) to respondent No.1 for supply of copy of intimation of
the original return along with the refund and interest. Respondent No.2
vide letter/order dated 6.9.2011 (Annexure P-20) declined the claim of
refund of the assessee on the similar grounds. Hence, the present writ
petition.
3. Learned counsel for the
petitioner submitted that the petitioner had filed the original return
on 26.7.2005 for the assessment year 2005-06 which was processed under
Section 143(1)(a) of the Act on 8.12.2005. Thereafter, the petitioner
had filed a revised return on 26.9.2006 under Section 139(5) of the Act
in which a refund of Rs. 3,61,188/- was claimed. The said refund had
been illegally declined to the assessee on the ground that the revised return which was filed was non-est.
4. On the other hand, learned
counsel for the respondents supported the orders passed by the
respondents and prayed for dismissal of the writ petition.
5. After hearing learned counsel
for the parties, we find that the defence of the revenue is not
acceptable. It would be advantageous to reproduce Section 139(5) of the
Act which reads thus:-
“139(5). If any person, having furnished
a return under sub-section (1), or in pursuance of a notice issued
under sub-section (1) of section 142, discovers any omission or any
wrong statement therein, he may furnish a revised return at any time
before the expiry of one year from the end of the relevant assessment
year or before the completion of the assessment whichever is earlier:
Provided that where the return relates
to the previous year relevant to the assessment year commencing on the
Ist day of April, 1988, or any earlier assessment year, the reference to
one year aforesaid shall be construed as a reference to two years from
the end of the relevant assessment year.”
6. A plain reading of sub-section
(5) of Section 139 of the Act shows that where the assessee discovers
any omission or any wrong statement in the original return filed is
entitled to file a revised return at any time before the expiry of one
year from the end of the relevant assessment year or before the
completion of the assessment, whichever is earlier.
7. In the present case, the
assessee had been forwarded with the intimation regarding processing of
return under Section 143(1)(a) of the Act on 8.12.2005. The question for
consideration would be whether an intimation under Section 143(1)(a) of
the Act would constitute assessment so as to disentitle the assessee to
file the revised return. The said question stands answered by the Hon’ble Apex Court in Asstt. CIT v. Rajesh Jhaveri Stock Brokers (P.) Ltd. [2007] 291 ITR 500 in the following terms:-
“It is to be noted that the expressions
“intimation” and “assessment order” have been used at different places.
The contextual difference between the two expressions has to be
understood in the context the expressions are used. Assessment is used
as meaning sometimes “the computation of income”, sometimes “the
determination of the amount of tax payable” and sometimes “the whole
procedure laid down in the Act for imposing liability upon the tax
payer”. 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(1)(a) as it stood
prior to April 1, 1989, the Assessing Officer had to pass an assessment
order if he decided to accept the return, but under the amended
provision, the requirement of passing of an assessment order has been dispensed with and instead an intimation is required to be sent. Various circulars sent by the Central Board of Direct Taxes spell out the intent of the Legislature, i.e., to minimize the departmental
work to scrutinize each and every return and to concentrate on
selective scrutiny of returns. These aspects were highlighted by one of
us (D.K. Jain J) in Apogee International Limited v. Union of India [1996]
220 ITR 248 (Delhi). It may be noted above that under the first proviso
to the newly substituted section 143(1), with effect from June 1, 1999,
except as provided in the provision itself, the acknowledgment of the
return shall be deemed to be an intimation under section 143(1) where
(a) either no sum is payable by the assessee, or (b) no refund is due to
him. It is significant that the acknowledgment is not done by any
Assessing Officer, but mostly by ministerial staff. Can it be said that
any “assessment” is done by them? The reply is an emphatic “no”. The
intimation under section 143(1)(a) was deemed to be a notice of demand
under section 156, for the apparent purpose of making machinery
provisions relating to recovery of tax applicable. By such application
only recovery indicated to be payable in the intimation became
permissible. And nothing more can be inferred from the deeming
provision. Therefore, there being no assessment under section 143(1)(a),
the question of change of opinion, as contended, does not arise.
8. The aforesaid judgment was was followed by the Division Bench of this Court in CWP No. 17854 of 2007 (Baljit Singh v. CIT decided on 3.12.2007 (Annexure P-21).
9. Once that is so, there was no
regular assessment framed in the present case. Therefore, the assessee
for assessment year 2005-06 could file the revised return after
complying with the provisions of Section 139(5) of the Act up to
31.3.2007. The revised return filed on 26.9.2006 was thus validly filed
within limitation. Consequently, the claim of the petitioner-assessee
for the refund of the additional tax deposited amounting to Rs.
3,61,188/- is valid and justified.
10. Learned counsel for the petitioner has further relied upon a Division Bench judgment of this Court in Roadmaster Industries of India (P.) Ltd. v. CIT [2010]
329 ITR 69 to canvass that the petitioner was also entitled to
interest from the date the amount was deposited till the date of
granting of the refund to the petitioner. Reliance was placed on the
following observations:-
“As a sequel to the aforesaid
discussion, these writ petitions are allowed and the order dated April
30, 2007 (P-12) passed by the Commissioner of Income-tax is hereby
quashed. Consequently, the respondents are directed to calculate the
amount of interest payable to the assessee-petitioner from the date the
amount was deposited by it till the date the refund is granted. The
assessee-petitioner shall also be entitled to the amount of interest on
interest. The aforesaid directions shall be subject to adjustment of the
amount which might have already been paid to the assessee-petitioner.
The needful shall be done within a period of three months from the date
of receipt of a certified copy of this order.”
11. In view of the above, we
allow the writ petition and direct that the refund be released to the
petitioner within three months from the date of receipt of certified
copy of order along with interest at the rate of 12% per annum till the
date of making the payment to him.
