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TaxTMI 
TaxTMI 
TaxTMI 
2019 (7) TMI 549
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....tory provisions. 2. Brief facts are as under : The Petitioner is a Company registered under the Companies Act, 1956 and is regularly assessed to the tax. The Petitioner had filed return of income for the said assessment year 2015-16 on 20th November, 2015. This return gave rise to refund. The Petitioner filed a revised return on 1st March, 2017, which also gave rise to refund claim. The Assessment Officer in terms of Section 143(1) of the Income Tax Act ("the Act" for short) would process the return before 31st March, 2018. The Assessing Officer did not do so, instead issued a notice of scrutiny assessment under Section 143(2) of the Act, on 27th March, 2017. 2. The Petitioner approached the Assessing Officer and higher authorit....
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.... undated Affidavit-in- Reply filed by one Shri Rahul Singhania, Dy. Commissioner of Income Tax, Mumbai. In such Affidavit, a reference is made to the provisions of Section 143(1D) of the Act and the fact that the Assessing Officer has issued notice under Section 143(2) of the Act. After referring to these provisions, it is stated that the Petitioner was informed that the refund cannot be issued in view of Section 143(1D) of the Act, since notice under Section 143(2) of the Act is already issued. A reference is also made to a draft assessment order for the year under consideration, which if ultimately finalized would give rise to a tax demand from the Petitioner instead of department paying refund. 6. As we would notice, as per differe....
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....ore, the circulars/orders /instructions issued by the CBDT under Section 119 of the Act would be binding upon the Revenue only to the extent they are beneficial to the assessee. Such instructions, if not beneficial to the assessee, cannot prevail over the Act. In the above view, the Delhi High Court held that Instruction No.1 of 2015 dated 13th January, 2015 issued by the CBDT is unsustainable in law and therefore, set it aside. It must also be pointed out that the Revenue is not disputing the decision of the Delhi High Court in in Tata Teleservices Ltd. (Supra) either on facts or in law. Therefore, in view of the decision of this Court in Smt. Godavari devi Saraf (Supra), the officers implementing the Act are bound by the decision of the D....
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....in Writ Petition No.2051 of 2017 and in particular paragraph 9, it is very clear that he is under an impression that as the last date for completing scrutiny assessment for the year 2015-16, is 31st December, 2017, he can wait till 31st December, 2017 for completing the scrutiny assessment. This approach which is reflected from the said affidavit, has to be deprecated. Secondly, he has completely ignored that such return has to be processed as there was no discretion exercised after service of notice under sub- Section (2) of Section 143." 8. Gujarat High Court in the case of Corrtech International (P) Ltd. V/s. Deputy Commissioner of Income Tax 401 ITR 355 (Gujarat) was also confronted with some what similar situation. It was not....
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....f sub-section (1D) of Section 143, there would be no scope thereafter for the Assessing Officer to withhold the refund arising out of the return filed by the assessee. 17. This position would become clear if we compare the provisions of Section 143(1D) as amended by the Finance Act, 2017 read with newly inserted Section 241A. Under the new sub-section (1D) the legislature provides that notwithstanding anything contained in sub-section (1) the processing of return would not be necessary where a notice has been issued to an assessee under sub-section (2). This would make it clear that once notice under Section 143(2) has been issued, the Assessing officer shall not process the return under Section 143(1). The original proviso to subs....
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....Act, for processing the return is over long back. Even though as discussed earlier, the Assessing officer having issued notice under subsection (2) of Section 143 of the Act, he would get an extended time for proceeding under sub-section (1) as highlighted by the Delhi High Court in case of Tata Teleservices Ltd. (Supra) and by the Bombay High Court in the case of Group M Media India (P) Ltd. (Supra), it would be wholly inequitable for the Assessing Officer to merely sit over the Petitioner's request for refund citing the availability of time upto the last date of framing the assessment under sub-section (3) of Section 143. At lease once the time limit envisaged in the proviso to sub-section (1) of Section 143 is over without the Assess....