TaxTMI 
TaxTMI 
2007 (11) TMI 294
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....ance tax of Rs. 10 lakhs during the accounting year. Besides this, an amount of Rs. 47,957 is recovered by others from the petitioner's bills towards tax deduction at source. The petitioner's audit is done by an auditor appointed under section 63(4) of the Kerala Co-operative Societies Act, 1969. Invariably the statutory audit is delayed and in this accounting year also, the petitioner's audit was completed only on January 28, 2000. After completion of audit, the petitioner filed a return claiming refund of advance tax and tax deducted at source remitted by others through exhibit P 5 application. The Assessing Officer rejected the return as time barred and consequently declined refund. However, the petitioner filed an application under sect....
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....ssment has to be completed as provided under Chapter XIV of the Income-tax Act. Even though a claim for refund made by filing a regular return involves assessment to determine liability, it cannot be said that the exercise is a regular assessment as contemplated under Chapter XIV of the Act. Section 139 provides for filing of return by the assessees who declare themselves liable for payment of tax. Besides this, certain categories of the assessees are required to file return only for the Department to ensure that there is no escapement of assessable income. In other words, Chapter XIV is mainly oriented to ensure assessment and recovery of tax to protect the interests of the Revenue. On the other hand, Chapter XIX provides for refund and an....
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....nt to do so for avoiding genuine hardship for the assessee. For easy reference section 119(2)(b) of the Income-tax Act is extracted hereunder : " 119. (2) Without prejudice to the generality of the foregoing power ;- . . . (b) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order, authorise any income-tax authority, not being a Commissioner (Appeals) to admit an application or claim for any exemption, deduction, refund or any other relief under this Act after the expiry of the period specified by or under this Act for making such application or claim and deal with the same on merits in accordance with law." 4. Standing counsel refer....
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....nt paid is in excess of the tax, interest, etc., payable. In other words, once the Board allows the application under section 119(2)(b) of the Act, the matter goes to the Assessing Officer for considering the assessee's claim for refund under section 237. Section 237 makes it clear that the Assessing Officer while considering application for refund should consider the amount of tax chargeable on the claimant under the Act and refund arises only if the payment is in excess of the tax payable under the Act. In other words, the Assessing Officer has powers of assessment under section 237 while considering an application for refund. Refund is payable only if it is in excess of tax and other amounts payable under the Act. In other words, an asse....