TaxTMI 
TaxTMI 
2011 (9) TMI 206
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....(a) on 14.11.2000 accepting the return and determining a refund of Rs. 1,08,66,716-00. However, as against the assessee's claim of Rs. 1,36,35,634-00, the Assessing Officer gave credit only to a sum of Rs. 38,14,844-00 towards tax deducted at source. Subsequently, the assessee filed letter dated 19.12.2000 and 12.02.2001 requesting for rectification of the intimation on the ground that credit for entire tax deducted at source was not given. The assessee also pointed out that at the time of filing the return, credit for TDS amounting to Rs. 19,44,692-00 was not claimed since the relevant TDS certificates were not available and since these certificates have been received subsequently, they wanted credit to be given to the extent of Rs. 19,44,692-00. Thereafter, the Assessing Officer passed an order under Section 154 rectifying the intimation. In this order, he gave credit to a sum of Rs. 1,45,98,652-00 towards tax deducted at source which included the amount of Rs. 19,44,672-00 in respect of which no claim was made in the original return of income. Since the assessee did not claim this amount of TDS in the return filed on 29.12.1999 and also no details of the same were indicated in t....
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....icate and the claim is made on that basis, the assessee shall not be entitled to any refund of excess tax paid. Therefore, the order passed by the Assessing Authority on 14.11.2000 did not suffer from any mistake. Therefore, when an application is filed on 19.12.2000 and 12.02.2001 claiming the said amount by enclosing TDS certificate, he could not have exercised his power under Section 154 as there was no error apparent on the face on the record. Even otherwise, the amendment introducing sub-section 14 of Section 155 came on the statute book from 01.06.2002. It has no retrospective operation. Even according to the amended provision, the assessee was not entitled to the said refund. The order passed by the Assessing Authority was erroneous and prejudicial to the interest of the revenue. The Commissioner was justified in exercising his revisional jurisdiction which is vested in him. Therefore the Tribunal committed serious error in interfering with the said order. 4. Per contra, the learned Counsel for the assessee supported the impugned order. 5. In the light of the facts and rival contentions, the substantial question of law that arise for consideration in this appeal is as ....
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....claim is made, the amount deducted is treated as payment on behalf of person from whose income the deduction was made and credit to the tax is given. If, on assessment of the said return filed, the amount of tax paid by the assessee or on his behalf are treated as paid by him or on his behalf for any assessment year, exceeds the amount with which he is properly chargeable under this Act for that year, he shall be entitled to a refund of the excess under Section 237 of the Act. Once an order is passed by the Assessing Authority under Section 143(1)(a) or under Section 143(3), under Section 154 of the Act, a power is vested with the said Assessing Authority to rectify any mistake apparent from the record in the said order. In order to rectify the said mistake, he can amend any order passed by him, under the provision of the Act or amend any intimation or deemed intimation under sub-section (1) of Section 143. Such an amendment can be made on its own motion or when the mistake is brought to its notice by the assessee or where the authority concerned is Commissioner of appeals, by the Assessing Officer also. When the amendment is made under the Section, an order shall be passed in writ....
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....is proposed to insert a new sub-section (14) in Section 155 to provide that where in the assessment for any previous year or in any intimation or deemed intimation under Sub-Section (1) of Section 143 for any previous year, credit for tax deducted in accordance with the provisions of Section 199 has not been given on the ground that the certificate furnished under Section 203 was not filed with the return and subsequently such certificate is produced before the Assessing Officer within two years from the end of the assessment year in which such income is assessable, credit of tax deducted at source shall be given to the assessee on production of such certificate. Nothing contained in the proposed sub-section shall apply unless the income from which tax has been deducted has been disclosed in the return of income filed by the assessee for the assessment year. The proposed amendment shall enable the Assessing Officer to rectify the order of assessment or any intimation or deemed intimation under Sub-Section (1) of Section 143. As a consequence, it is also proposed to amend sub-section (9) of section 139 to provide that where the return is not accompanied by proof of the tax, if....
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....y the assessee who are unable to produce the certificate along with the returns, though, the person who has to pay money to them has deducted the tax at source, credited to the Government, but he was unable to get credit for non-production of the certificate. 11. In the instant case the period of assessment is 1999-2000. The order under Section 143(1)(a) is passed on 14.11.2000. In the return filed, the assessee did not claim credit for a sum of Rs. 19,44,672-00 as he was not in possession of the TDS certificate. The deemed assessment is made on 14.11.2000. It is on 12.02.2001, an application is filed under Section 154 of the Act enclosing the TDS certificate numbering 72, claiming credit for a sum of Rs. 19,44,672-00 and seek refund of the said amount. The Assessing Authority in purported exercise of his power under Section 154 of the Act, accepted the said claim, amended the order of assessment dated 14.11.2000 and directed refund of the said amount by his order dated 12.06.2001. It is that order which is now found fault with the Commissioner by virtue of the power conferred on him under Section 263 of the Act, on the ground that the said order is not only erroneous but also p....
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.... in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Chief Commissioner or Director General or Commissioner authorised by the Board in this behalf under section 120; (b) "Record" shall include and shall be deemed always to have included all records relating to any proceeding under this Act available at the time of examination by the Commissioner; (c) Where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal filed on or before or after the 1st day of June, 1988, the powers of the Commissioner under this sub-section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal. (2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, o....
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....which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the Revenue, unless the view taken by the Income Tax Officer is unsustainable in law. It has been held by this Court that where a sum not earned by a person is assessed as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the Revenue." 15. In the case of Dawjee Dadabhoy & Co. v. S.P. Jain [1957] 31 ITR 872 (Cal.) explaining the meaning of the words 'prejudicial to the interest of the revenue' it was held as under: "The words, "prejudicial to the interests of the revenue", have not been defined, but it must mean that the orders or assessment challenged are such as are not in accordance with law, in consequence whereof the lawful revenue due to the State has not been realised or cannot be realised. It can mean nothing else." 16. As is clear from the wording in Section 263, the Commissioner gets the jurisdiction to revise any proceedings under this Act if he considers that any order passed therein by the Assessing Officer is erroneous insofar as it is pr....