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Gujarat High Court
Judgename :B.K.MEHTA, B.S.KAPADIA
LAKHANPAL NATIONAL LIMITED - Appellant
Versus
INCOME TAX OFFICER,baroda. - Respondent
S.C.A. 5280 of 1985
Decided On : 03/31/1986
Income Tax Act – 28 , 43b , 139 (1) and 141a - Finance Act 1968 - Petitioner has paid total advance tax of Rs. 74 8 487 and the tax deducted at source was Rs. making the total of the two sums in the accounting year being Calendar year ending - Estimated income of the petitioner-assessee for the accounting year 1983 was Rs. in the estimate of advance tax filed in the year - Petitioner has submitted on 26 its income-tax return showing the loss of Rs. for assessment year corresponding accounting year - Petitioner addressed to the respondent a letter dated - In said letter the above position was made clear and it was pointed out that income-tax payable thereon comes to Rs. nil whereas the petitioner has paid income tax to tune of Rs as stated above and requested that total amount refundable to the petitioner-assessee came to Rs. - Thus the petitioner requested respondent to release the refund order under see. 141a of the Income Tax Act - A copy of the said letter is annexed as Annexure -C to petitioner - petitioner is that Income Tax Officer was under obligation to make provisional assessment after making adjustment under sub-sec. (2) of sec. 141a of Act but petitioner did not hear anything from the respondent to its letter of petitioner therefore approached the Inspecting Assistant Commissioner of Income Tax and subsequently the petitioners Chartered Accountant addressed a letter dated to the Inspecting Assistant Commissioner of Income Tax Range-I to effect that it was very kind of him to agree that a draft – Hed, Inter alia in memorandum explaining the provisions of the Finance Act 1968 as under in order to avoid hardship due to delay in issue of refund in cases where the completion of regular assessment is likely to be delayed it is provision to make a new provision in the Income Tax Act enabling tax payers to claim refund of tax of a provisional assessment made on basis of the return of income and accounts and documents accompanying it Any refund of tax on the basis of the provisional assessment will be deemed to have been issued in respect of the regular assessment - Income Tax Officer the regular assessment of the assessee is likely to be delayed and if no assessment has been made within six months the Income Tax Officer is bound to make a provisional assessment of tax refundable - Under the circumstances we are of the opinion that in this case the respondent-Income Tax Officer has failed to discharging his statutory duty in making the provisional assessment under sec. 141a of the Act - One of the grounds raised by respondent is that six months time is over - That ground cannot be available to him - Otherwise in every case Income Tax Officer may not pass any order within six months from date of furnishing the return and when the writ petition is filed it may be opposed on ground that provisional assessment was to be made within the period of six months - Petition is allowed.
( 1 ) THE petitioner has filed this writ petition for a writ of mandamus or any other appropriate writ order or direction asking the respondent to pass immediately an order refunding Rs. 74 79 6 with interest at the rate of 15% per annum from 1-4-1985 and also to pass such other and further order as the interest of justice demands in the matter.
( 2 ) THE petitioner is a Public Limited Company and is an assessee under the Income Tax Act 1961 for the last many years. The respondent is the Income Tax Officer who is having jurisdiction to assess the Income of the petitioner-Company. The petitioner has paid total advance tax of Rs. 74 8 487 and the tax deducted at source was Rs. 70 519 making the total of the two sums Rs. 74 79 6 in the accounting year being the Calendar year ending on 31-12-1933. The estimated income of the petitioner-assessee for the accounting year 1983 was Rs. 1 32 52 900 in the estimate of advance tax filed in the year. The petitioner has submitted on 26 its income-tax return (under sec. 139 (1) of the Income Tax Act) showing the loss of Rs. 75 84 532 for the assessment year 1984- 85 the corresponding accounting year 1983. The above position was made clear in the statement of accounts of computation of total income which is annexed as Annexure-A to the petition.
( 3 ) ACCORDINGLY the petitioner addressed to the respondent a letter dated 20-7-1984. In the said letter the above position was made clear and it was pointed out that income-tax payable thereon comes to Rs. nil whereas the petitioner has paid income tax to the tune of Rs. 74 79 6 as stated above and requested that the total amount refundable to the petitioner-assessee came to Rs. 74 79 6 Thus the petitioner requested the respondent to release the refund order under see. 141a of the Income Tax Act. A copy of the said letter is annexed as Annexure -C to the petitioner.
( 4 ) THE submission of the petitioner is that the Income Tax Officer was under obligation to make provisional assessment after making adjustment under sub-sec. (2) of sec. 141a of the Act but the petitioner did not hear anything from the respondent to its letter of 20/07/1984 The petitioner therefore approached the Inspecting Assistant Commissioner of Income Tax and subsequently the petitioners Chartered Accountant addressed a letter dated 17/09/1984 to the Inspecting Assistant Commissioner of Income Tax Range-I Baroda to the effect that it was very kind of him to agree that a draft order under sec. 141a of the Act will be passed by the Income Tax Officer the respondent herein and that the said draft order will be discussed with the petitioners Chartered Accountant before finalising the same. The petitioner-assessee waited for the draft order but no such order was received and the matter did not move for some time.
( 5 ) THE petitioner thereafter received a letter dated 7/12/1984 from the respondent herein stating inter alia that the petitioner had claimed she following two amounts : (1) Excise duty paid on closing stock of finished goods lying at various depots. Rs. 29 89 439 (2) Custom duty paid as per statement. Rs. 1 24 94 85 and it was pointed out that no reference was available in the audited statement of accounts furnished along with the return and that the particulars of the custom duty excise duty and sales tax debited to the accounts of that year and that paid during the accounting year have not been furnished along with the return and that in the absence of these particulars he was not able to consider the petitioners application under sec. 141a of the Act and that he did not think that these deductions can be considered as prima facie allowable within the meaning of sec. 141a of the Act for which no reference was available either in the return or in the audited statement of accounts. In the said letter the respondent therefore called upon the petitioner to furnish the above mentioned details at the earliest so that application under sec. 141 can be considere
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