The collection of advance tax and retention thereof was de hors the Act and the provisions of Section 239(2)(c) of the Act would not be attracted to the facts of the present case.

D.S.Tewatia, J.

1. The petitioner-assessee (hereinafter referred to as the "assessee") deposited on March 20, 1971, a sum of Rs. 9,400 by way of advance tax in compliance with the order passed under Section 210 of the I.T. Act, 1961 (hereinafter referred to as "the Act"), and the demand notice under Section 156 of the Act in regard to the assessment year 1971-72.

2. The assessee filed the income-tax return for the said year on October 1, 1971, showing an income of Rs. 39,469. The assessee thereafter filed a second return on November 27, 1973, which is alleged to be a revised return, therein showing an income of only Rs. 6,130. The prescribed period for passing an assessment order for the assessment year in question whether reckoned from the date of filing of the first return or from the date of filing of the second return, admittedly stood already expired when on April 28, 1975, the assessee addressed a communication, annex. P-l, terming the same as an application for the refund of the said advance tax. Thereafter, the assessee addressed a spate of letters and reminders to the IAC of Income-tax, CIT and the CBDT. Finally, he received a communication on September 21, 1976, annex. P-9, to the petition, informing him that no refund could be issued to the petitioner as the tax paid was on the basis of income return originally and the revised return could not be filed in view of the provisions of Section 139(4), This led to the filing of the present petition claiming mandamus against the Department to make a refund. In the petition the assessee has asserted that he is entitled to the refund of the advance tax collected from him in pursuance of the order under Section 210 of the Act and demand notice issued under Section 156 of the Act with interest up to the date of the refund and that the amount of advance tax in question is being retained by the Department without any authority of law.

3. In the return filed to the writ petition respondent No. 1 has taken the stand that no tax is refundable, firstly, for the reason that when the first return was filed by the assessee, a sum of Rs. 2,400 odd, on the basis of self-assessment under Section 140A of the Act, was due to the Revenue, in addition to what had been already paid by way of advance tax and that the second return could not be considered to be a revised return under Sub-section (5) of Section 139 of the Act as the first return itself was under Sub-section (4) of Section 139, under which no revised return could be filed, and, secondly, in view of the provisions of Section 239(2)(c), the refund was barred by limitation as no application was moved on the prescribed form and within the prescribed period.

4. The first question in the light of the stand taken by the assessee and the Revenue, already noticed, that falls for consideration is as to whether the assessee is entitled to the refund of Rs. 9,400 collected from him in pursuance of the order under Section 210 of the Act and the demand notice issued under Section 156 of the Act.

5. Mr. Balwant Singh Gupta, appearing for the assessee, elaborating the assessees claim, canvassed that tax becomes due and recoverable from an assessee only after an assessment order in accordance with the provisions of the Act is passed. In the present case, the assessment for a given year having become barred and no assessment order, therefore, has been passed and can be passed, no tax, therefore, is due from the assessee and liable to be recovered from him and that the amount of advance tax collected from the assessee could not be related for the given year to any order of assessment under the Act. In other words, the Revenue is not entitled to retain the amount collected by it under Section 210 of the Act as the retention of that amount is without any authority of law and is clearly violative of the mandate of the provisions of Article 265 of the Constitution of India. Mr. Gupta drew support for his aforesaid plural submissions from Purshot