TaxTMI 
TaxTMI 
2007 (2) TMI 172
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....s of sections 10(10C), 17(3)(i) and 89 of the Income-tax Act, 1961 (for short " the Act" ) read with rule 21A, the petitioner was not liable for payment of any tax and the amount of Rs.29,331 deducted on the amount of Rs. 1,01,270 purporting to be on the salary part of the assessee was to be refunded even in terms of the law laid down by this court in the case of CIT v. Surendra Prabhu (P.) reported in [2005] 279 ITR 402 (Karn) ; [2005] 59 KLJ 609. 3. It appears the petitioner had filed a return in Form No. 2D seeking refund of this amount. A copy of the return is produced as annexure C to the writ petition. It is the further case of the petitioner that the Income-tax authorities did not respond to the return filed by the petitioner in Form No.2D and as a consequence the petitioner pressed into service the provisions of the Right to Information Act, 2005, by filing an application on July 18, 2006, copy at annexure D to the petitioner. It is in response to this, the second respondent-Commissioner of Income-tax, Bangalore-5, has intimated the petitioner that the return of income is not a valid return and cannot be processed as it had been filed beyond the time-limit prescribed und....
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....sued to respondent No. 2. 10. Sri Aravind, learned counsel for respondent No. 2, on the other hand submits that the second respondent or the Income-tax Department is not so much averse to consider the return of the petitioner but the petitioner is required to file an application in terms of section 119(2)(b) of the Act as the return which was filed on May 18, 2006, on the face of it is a belated return; that unless the Commissioner in exercise of the power delegated by the Board under this provision condones the delay in filing such return, it may not be possible for the Assessing Officer to process the return and would therefore submit that if the petitioner should file an application before the Commissioner invoking the provisions of section 119(2)(b) of the Act, it will enable the concerned Assessing Officer to process the return if the Commissioner should condone the delay in filing the return etc. 11. It is the submission of learned counsel for respondent No. 2 that unless this procedure is gone through, it is not open to the Assessing Officer to assess the return as the return is a void return or non est in law and therefore mandamus as sought for cannot be issued nor c....
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....hile it may not be open to the Income-tax Department to bring to tax any income beyond the period permitted in terms of section 147 of the Act if within that time either a return is filed whether within the time stipulated under section 139(1) or 139(4) or otherwise, it can be looked into and there is no embargo as such. 18. In the present case, the petitioner having filed the return though beyond the time permitted, it is not as though the return is one which is per se prohibited to be processed by the Income-tax authorities under the statutory provisions. It is for this reason, with great respect, I am not inclined to follow the decision rendered by the Calcutta High Court in Minabati' s case [1971] 79 ITR 278. 19. Learned counsel for respondent No. 2 has also placed reliance on the decision of the Punjab and Haryana High Court in Metal Engineers' case [1978] 111 ITR 161. 20. That was a case where the assessing authority declined to process a return filed by the assessee within the permitted time under section 139 and on the other hand had issued a notice under section 147 of the Act calling upon the assessee to make a return and on the other hand the assessee ha....
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....ing to even issue a notice under section 147 of the Act and call upon the assessee to file a return or a revised return as the case may be and proceed to take further action under the Act. The test is if a return pursuant to the notice under section 147 of the Act could be processed, there is no reason as to why return filed otherwise cannot be processed. The defence put up by the respondents for not processing the return filed by the assessee in Form No. 2D (copy annexure D) is not supported by any provision of the statute and can only amount to inaction on the part of the respondents. 28. The time stipulation prescribed for filing a return of income in terms of section 139 of the Act is operative on a person who is compelled to file a return in terms of section 139(1) of the Act. It is a person who has income over and above the exempted limit and whose income is taxable under the Act, who is required to file the return and while so, is bound to follow the period. The extended periods in terms of several sub-sections are also applicable to such persons. 29. Likewise, the notice in terms of section 147 and the time stipulation for issue of notice, etc., are also in respect of....
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....ceeding a sum of Rs. 5.00 lakhs in terms of section 10(10C) of the Act is also one on a claim by the assessee as an amount received which qualifies for this exemption. This again can be done only in a return filed by the assessee and not elsewhere. It may be noticed that if the assessee is not entitled for this benefit of section 10(10C) then the income becomes taxable and it can be brought to tax by the Assessing Officer by invoking the provisions of section 147 of the Act. At least for determination of this position, it will be necessary for the Assessing Officer to process the return and finalise the same and if need be by invoking the provisions of section 147 also. Even without looking into the return, it will not be possible for the Assessing Officer to conclude that as there is no taxable income, no need to process the return, etc. Therefore, in either view of the matter, it will be necessary for the Assessing Officer to process the return and to pass orders in accordance with the provisions of the Act and not to justify the inaction. 32. It is the duty of the functionaries under the Income-tax Act to implement the provisions of the Act in accordance with law. A return fi....