Income Tax Appellate Tribunal - Delhi
Om Prakash Aggarwal vs Income-Tax Officer on 5 February, 1995
Equivalent citations: [1995]53ITD7(DELHI)
ORDER
A. Satyanarayana, Accountant Member
1. This appeal by the assessee is against the order of the DCIT(A) dated 5-8-1992 for the assessment year 1990-91 for which the previous year ended on 31-3-1990.
2. The assessee is an individual. She originally filed return of income on 26-10-1990 declaring total income of Rs. 33,160. In the statement of income filed along with the return, she claimed credit for TDS of Rs. 1265 and self-asstt. tax paid under Section 140Aof Rs. 3,210. Later on, she filed claim for refund of tax dated 26-3-1991 in Form No. 30 along with the statement of income showing the total income at the same figure of Rs. 33,160. In the statement of income filed along with the said Form No. 30, she claimed credit for advance tax paid of Rs. 5,300 on 14-3-1990. Along with the covering letter dated 27-3-1991, receipted challan for Rs. 5300 was appended and another return was also filed. Reliance was placed on the order of the DCIT(A) dated 21-5-1990 in the case of Shri Rakesh Kumar Aggarwal for the assessment year 1986-87 wherein a similar claim was made in similar circumstances and was allowed by the DCIT(A). Copy of the said appellate order was also annexed for ready reference. The assessee's claim for refund in Form No. 30 and the annexures were filed with the Assessing Officer on 2-4-1991. The AO rejected the assessee's claim for refund through letter dated 14-8-1991 by observing as under :
'To Smt. Shanti Devi w/o Parbhu Dayal, C/o Ramji Lal Amar Singh, Mandi Ateli.
Please refer to the Income-tax return for asst. year 1990-91 filed in this office on 2-4-1991 for claim of refund. In this connection, it is stated that the claim of refund is supplementary, hence the same cannot be entertained as the return for 1990-91 already filed on 26-10-1990 has been processed Under Section 143(1)(a) on 24-12-1990. Hence the return filed on 2-4-1991 for supplementary claim of refund cannot be entertained and proceedings are filed. Sd/-
(Inderjit Saldi) Income-tax Officer, Narnaul Ward, Narnaul.
Aggrieved by the said order, the assessee preferred an appeal before the DCIT(A).
3. Before the DCIT(A), the assessee's counsel reiterated the submissions and placed reliance on the order of the DCIT(A) in the case of Shri Rakesh Kumar Aggarwal (supra). According to the DCIT(A), "the stand of the AO has been that the return of income filed initially by the appellant has since been disposed of and that the revised return of income filed thereafter cannot be entertained". He dismissed the appeal of the assessee by observing as under :
4. I have carefully applied my mind to all the facts and circumstances of the case. It is seen that the appellant could have filed the revised return of income only before the expiry of one year from the end of the relevant assessment year or before the completion of assessment, whichever is earlier. This has been the provision of Sub-section (5) of Section 139 of the IT Act, 1961. In view of this specific provision in the Income-tax Act, in my opinion, the stand taken by the AO was quite justified. As such, I respectfully differ with the findings of my predecessor because this aspect was not before him. As such, in the given circumstances, neither any relief is called for nor is allowed.
Dissatisfied with the order of the DCIT(A), the assessee preferred the present appeal before the Tribunal.
4. The assessee's counsel filed a paper book of 13 pages containing, inter alia, copy of statement of income filed originally on 26-10-1990, copy of Challan for Rs. 5,300 paid on 14-3-1990, copy of Form No. 30 and copy of covering letter dated 27.-3-1991. He urged that the DCIT(A) erred in law and on facts in confirming the order of the Assessing Officer in refusing to entertain and process the assessee's claim for refund of a sum of Rs. 5,927. He gravely erred in law in ignoring the order of the Tribunal in the case of Dipesh Ratti Lal v. ITO which was followed by the DCIT(A) in the case of Shri Rakesh Kumar Aggarwal.
5. The D.R. contended that the assessee's claim had been made under Section 239(2)(c) of the IT Act, 1961. If the return filed under Section 139(1) was already processed, then Form No. 30 has to be accompanied by a fresh return which can only be treated as a revised return under Section 139(5). As per Section 139(5) as it existed on 1-4-1990, the revised return has to be furnished at any time before the expiry of one year from the end of the relevant assessment year or before the completion of assessment, whichever is earlier. Since the assessment has already been completed on 24-12-1990, the revised return was properly rejected by the Assessing, Officer.
6. I have considered the rival submissions and perused the papers filed before me. Note No. 1 under the Notes below Form No. 30 (claim for refund of tax) obliges that "the claim should be accompanied by a return of income in the prescribed form unless the claimant has already made such a return to the Assessing Officer". As per Section 239(2)(c) as it existed on 1-4-1990 the claim for refund has to be made within two years from the last day of the assessment year. Admittedly the claim for refund is within the prescribed time limit, since it was filed before 31-3-1993 itself. Actually there was no necessity for the assessee to enclose a return of income along with the claim for refund in Form No. 30, since the return was already furnished to the Assessing Officer. Hence the return accompanying the claim for refund in Form No. 30 should have been ignored by the Assessing Officer. He should have considered only the claim for refund in Form No. 30. The Assessing Officer was not correct in refusing to entertain the claim for refund by his order dated 14-8-1991. The DCIT(A) confused himself by treating the return accompanying the claim for refund as "revised return" filed under Section 139(5). It is not the case of the assessee that it was a revised return under Section 139(5). In the circumstances, I direct the Assessing Officer to entertain the assessee's claim for refund of Rs. 5,927 and process it and dispose of the same after affording the assessee a reasonable opportunity of being heard.
7. In the result, the appeal is allowed.