IMPORTANT POINT
The court established that an intimation under Section 143(1) can be treated as an order for revision under Section 264, emphasizing the assessing authority's duty to consider refund claims based on the true state of affairs.

JUDGMENT :

Harisankar V. Menon, J.

The petitioner, an assessee under the Income Tax Act, 1961 (for short ‘the Act’), has filed this writ petition essentially challenging Ext.P4 order dated 05.12.2016 issued by the 1st respondent, rejecting a request made by the assessee under Section 264 of the Act. He also sought for the issue of appropriate directions to the 1st respondent herein to grant refund of the TDS amount based on the revised return filed, following certain judgments referred to in the prayer portion.

2. The short facts necessary for the disposal of this writ petition, are as follows:

The petitioner had filed its return with respect to the Assessment Year 2012-13 belatedly under Section 139(4) of the Act, on 10.05.2013. While filing the said return, the petitioner, though claimed certain losses, did not include certain portions of Tax Deducted at Source, which were reflected in the Form 26AS statements of the petitioner.

3. The assessment proceedings against the petitioner under Section 143(1) were taken culminating in the issue of Ext.P1 intimation dated 04.06.2013. A reference to Ext.P1 would show that the loss, as declared by the petitioner, is accepted. Upon receipt of the intimation in Ext.P1, the petitioner noticed that in the return filed by him, the TDS amount was not claimed on account of which the TDS portion is not being refunded to the petitioner. In such circumstances, the petitioner submitted an online request for rectification under Section 154 of the Act before the Centralized Processing Centre (CPC). It appears that the CPC has issued Ext.P2 dated 09.12.2014, pointing out that it cannot be rectified at their end since the matter has already been transferred to the jurisdictional Assessing Authority-2nd respondent-who may be contacted by the petitioner for further steps in that regard.

4. Though the petitioner had approached the jurisdictional Assessing Authority, after waiting for some time, the petitioner submitted Ext.P3 application dated 14.12.2015, under Section 264 of the Act for revision of the intimation at Ext.P1.

5. The 1st respondent herein has, thereafter, issued Ext.P4 order rejecting the request for rectification filed by the petitioner as above. While issuing the order at Ext.P4, the 1st respondent stated that the return being filed beyond the period prescribed, the petitioner is not entitled to file a revised return and therefore, there cannot be any revision under Section 264 of the Act. He further found that the intimation of the CPC cannot be considered to be an order prejudicial to the assessee, since the same is issued solely upon the return filed by the petitioner. Ultimately, he found that since the intimation cannot be considered to be an “order”, the power under Section 264 of the Act cannot be exercised.

6. It is challenging Ext.P4 order, issued as above, that this writ petition is filed by the petitioner with the afore prayers. A statement dated 18.07.2017 is filed by the learned Standing Counsel for the Income Tax Department, seeking to sustain Ext.P4 order issued by the 1st respondent herein.

7. I have heard Sri.Kuriyan Thomas, the learned counsel for the petitioner and Sri.Jose Joseph, the learned Standing Counsel for the Income Tax Department appearing for the respondents herein.

8. The learned counsel for the petitioner would contend that:

(i) the rejection of the application under Section 264 of the Act by the 1st respondent taking the view that the intimation is not an “order”, is not the correct proposition, relying on the judgment of a Division Bench of this Court in Commissioner of Income Tax v. K.V.Mankaram and Company [(2000) 162 CTR (Ker) 357].

(ii) He again points out that Tax Deducted at Source being reflected in Form 26AS, ought to have been considered while processing the return, even if the same was not claimed as a refund in the original return. For this proposition, he relies on a series of judgments in Commissioner of Income Tax v. K.V. Mankaram and Company [(2000)