2011 (12) TMI 230 - HC - Income Tax

Court dismisses writ petition, upholds tax decisions. Statutory requirements clarified. Refund claims must follow statute order.

The court dismissed the writ petition, upholding the decisions of the Assessing Officer and the Commissioner of Income Tax. It emphasized the statutory ... Non-banking financial institution – A.Y. 06-07 – notice issued u/s 143(2) on 10.10.07 – petition filed for revising return of income on 08.12.08 on the ground that returns were filed on the basis of the provisional accounts and interest on NPA was recognized and expenses were claimed in contravention of Sec 43D - assessment order passed on 23.12.08 – revised return filed on 07.01.11 - whether revision of return to claim fresh exemption by way of filing a revised statement of income after filing original return other than by way of filing revised return as contemplated u/s 139(5) - Held that:- There is no provision under the Income Tax Act to enable an assessee to revise his income by way of filing a revised statement of income. A.O. has no power to entertain fresh claim made by the assessee after filing of the original return other than by filing of revised return. During the relevant time, as the assessee had maintained the accounts on mercantile basis, it was bound to file the returns on that basis. Further, a change over from mercantile system to cash system is not permissible by filing a revised return much less a revised statement of income.Whether National Housing Bank Act,1987 overrides the Income Tax Act, 1961 – Held that:- There is no such provision in the National Housing Bank Act that it will override the Income Tax Act.Whether any sequence prescribed for issuance of notice u/s 142(1) and 143(2) – Held that:- The purpose of service of notices issued u/s 142(1) and 143(2) is different. There is no sequence prescribed as to in what manner two notices are to be issued. Therefore, there is nothing to say that the notice u/s 142(1) should precede notice u/s 143(2) so far as production of documents/accounts is concerned.Maintainability of appeal before CIT (Appeals) when petition of assessee u/s 264 is rejected – Held that:- Once the revisionary power vested with the Commissioner u/s 264 is invoked and the Commissioner passes the order by exercising his jurisdiction under that section, the order of assessment merges with the order of revision. The order passed by the Commissioner u/s 264 is also not an appealable order u/s 246/246A.Writ petition filed for refund - Held that:- Since we have not quashed the order of assessment dated 23.12.2008, order dated 11.03.2010 passed u/s 264 and first appellate order dated 15.09.2010 for the reasons stated above, no order granting refund of tax collected against the demand raised in the impugned assessment order can be passed. Further, such writ petition is not maintainable on the ground that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax and High Court is not acting as authority under any Statute while exercising power under Article 226 of the Constitution – Decided against the assessee. Issues Involved:1. Revision of return of income.2. Justification of Assessing Officer and Commissioner of Income Tax's decisions.3. Revision of return by a mercantile system following assessee.4. Overriding effect of the National Housing Bank Act over the Income Tax Act.5. Sequence of issuing notices under Sections 142(1) and 143(2) of the I.T. Act.6. Maintainability of appeal after rejection of a petition under Section 264.7. Grant of refund under Articles 226 and 227 of the Constitution.Issue-wise Detailed Analysis:1. Revision of return of income:The petitioner filed a revised statement of income after submitting the original return. The court noted that under Section 139(5) of the I.T. Act, an assessee can only revise a return by filing a revised return, not by submitting a revised statement of income. The court emphasized that the legislature provides this safeguard to correct bona fide omissions or errors in the original return. Therefore, the Assessing Officer was correct in not considering the revised statement filed by the petitioner.2. Justification of Assessing Officer and Commissioner of Income Tax's decisions:The court found that the Assessing Officer and the Commissioner of Income Tax acted correctly in holding that the petitioner could not claim fresh exemptions after filing the original return without submitting a revised return under Section 139(5). The court cited the Supreme Court's judgment in Goetze (India) Ltd. v. Commissioner of Income Tax, which held that fresh claims after filing the original return must be made through a revised return.3. Revision of return by a mercantile system following assessee:The petitioner, following the mercantile system, sought to revise the return based on accrued interest income. The court held that without a revised return, the Assessing Officer must base the assessment on the original return. A change from the mercantile system to the cash system through a revised statement is not permissible.4. Overriding effect of the National Housing Bank Act over the Income Tax Act:The court clarified that the National Housing Bank Act, 1987, and the Income Tax Act, 1961, occupy different fields and serve different purposes. There is no provision in the National Housing Bank Act that overrides the Income Tax Act. Therefore, the contention that the National Housing Bank Act overrides the Income Tax Act is untenable.5. Sequence of issuing notices under Sections 142(1) and 143(2) of the I.T. Act:The court noted that there is no prescribed sequence for issuing notices under Sections 142(1) and 143(2). Both notices serve different purposes: Section 142(1) for producing accounts/documents and Section 143(2) for requiring the assessee to produce evidence supporting the return. The court found no issue with the sequence of notices issued in this case.6. Maintainability of appeal after rejection of a petition under Section 264:The court explained that under Section 264(4), an assessee cannot pursue both revision and appeal remedies simultaneously. Once the petitioner invoked Section 264 and the Commissioner passed an order, the right to appeal was lost. The Commissioner of Income Tax (Appeals) was justified in not entertaining the appeal as it was not maintainable.7. Grant of refund under Articles 226 and 227 of the Constitution:The court held that refund claims must flow from an order passed under the statute. Since the court did not quash the assessment order or the orders under Section 264, no refund could be granted. The court cited the Supreme Court's judgment in Suganmal v. State of Madhya Pradesh, which held that a writ petition solely for refund is not ordinarily maintainable, as such claims should be made through a suit against the authority.Conclusion:The writ petition was dismissed, and no order for refund was granted. The court upheld the decisions of the Assessing Officer and the Commissioner of Income Tax, emphasizing the statutory requirements for revising returns and the non-overriding nature of the National Housing Bank Act over the Income Tax Act.