TaxTMI 
TaxTMI 
2014 (8) TMI 204
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.... and 1987-88. The common impugned order has refused to grant refund in view of proviso (a) to Section 240 of the Income Tax Act ("the Act") as such refund could be granted only on a fresh assessment being made and no such fresh assessment has been made in this case. 2) It is an agreed position between Counsel that the facts in both the petitions are identical save for difference in assessment years, relevant dates and amount/quantum of refund due. Thus for the sake of convenience we refer to the facts stated in Writ Petition No.1559 of 2005 filed in respect of Assessment Year 1987-88 which are as under: a) On 30 July 1987, the petitioner filed its return declaring total income of Rs. 7.86 lacs. The Assessing Officer by an order dated ....
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....nuary 1999. (e) However, in view of the failure of the Assessing Officer to pass any assessment order, the petitioner on 25 Feb. 2004, addressed a communication to the Chief Commissioner of Income Tax and sought direction to the Assessing Officer to refund the tax and the interest paid by the petitioner. On 26 April 2004, the petitioner made a detailed representation to the Assessing officer and pointed out that the order of assessment originally passed had been set aside by the CIT (A) by order dated 14 January 1999 and remanded for denovo adjudication. However, as no order of assessment has been passed consequent to the direction for remand and the time to frame an assessment, consequent to the order of the CIT(A) had expired on 31 Mar....
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....petitioners are only seeking a refund of the amount paid in excess of the tax payable on the returned income. The amounts paid consequent to the assessment order is being sought as refund. The issue is concluded in favour of the petitioner by the decision of the Supreme Court in CIT v. Shelly Products, 261 ITR 367. 4) As against the above, Mr. Suresh Kumar, learned Counsel for the Revenue in support of the impugned order dated 5 November 2004 submits as under: a) No assessment order could be passed by the Assessing Officer as the order of CIT(A) dated 14 January 1999 directing denovo adjudication was never received by the Assessing Officer as stated in the affidavit in reply. Thus, in the absence of the order of the appellate authorit....
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....o (a) thereto has been incorporated only to ensure that when an assessment has been restored to the Assessing Officer for fresh assessment order then the refund which is due on account of the Appellate order will be granted only after a fresh assessment order is passed by the Assessing Officer. So far as proviso (b) to Section 240 of the Act is concerned, it clearly provides that where assessment is annulled by the Appellate Authority and the refund becomes due to an assessee, the refund to be paid would only be the excess of the tax paid to the tax payable on the returned income. In this case, the petitioner is not seeking refund of the tax payable on the basis of the returned income but seeking refund of the tax and interest paid in exces....
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....see must be accepted as it is, and in the event of the tax paid being in excess of the tax liability, duly computed on the basis of the return furnished and the rates applicable, the excess shall be refunded to the assessee, since its retention may offend article 265 of the Constitution". The above observations of the Supreme Court are applicable to the facts of the petitioner's case. 7) The stand of the Assessing Officer that no refund could be granted as no assessment order on remand could be passed because copy of the order dated 14 January 1999 of the CIT(A) was not served upon him is not acceptable for the reason that the Assessing Officer could have himself called for a copy of the same from the office of the CIT(A). In any ....