PHILIP JOSEPH E Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) The petitioner is a partner of firm called "M/s. A & P Corporation". It was an assessee on the file of the Income tax Officer, Ward 2, Kottayam. It filed a return for the year 1975-1976 declaring a net income of Rs. 78,010/- and paid tax in respect of the said income. Likewise for the year 1976-1977 the petitioner filed return declaring net income of Rs. 76,190/- and paid tax in respect of the said income. These returns had been submitted in view of the provisions contained in S.140A of the Income tax Act, 1961 (for short 'the Act'). However, the Income tax Officer determined the income for the years 1975-1976 and 1976-1977 under the regular assessment. For the assessment year 1975-1976 the officer determined the income of the firm as Rs. 1,26,360/- and for the year 1976-1977, as Rs. 1,04,838/-. Being aggrieved by the additions made by the officer the assessee filed appeals and the Commissioner of Income tax set aside the additions made by the Income tax Officer. Ext. P1 is the copy of the order passed by the Commissioner of Income tax in the appeals. Since fresh assessments were not made pursuant to Ext. P1 order, the petitioner filed Ext. P2 representation before the Commissioner on 6.5.1988. Thereafter, the Income tax Officer passed Ext. P3 order on the basis of the direction issued by the Commissioner of Income tax. As against the said order the petitioner filed Ext. P4 Revision Petition before the Commissioner and the Commissioner finally passed Ext. P5 order under S.264 of the Income tax Act. In this writ petition the petitioner seeks to quash Ext. P5 order passed by the Commissioner and also for a direction to refund the amount paid for years 1975-1976 and 1976-1977.

(2.) Heard learned counsel for the petitioner and the Standing Counsel for the Income tax Department.

(3.) There is no dispute as to the refund of tax which was levied on the income added by the Income tax Officer at the time of regular assessment. The only dispute involved in this case is with regard to the refund of tax on the income refunded as per the self assessment. S.140A of the Act deals with self assessment. Sub-s. (1) of the said Section provides that where any tax is payable on the basis of any return required to be furnished under S.139 or S.142 or, as the case may be, S.148 after taking into account the amount of tax, if any, already paid under any provision of the Act, the assessee shall be liable to pay such tax before furnishing the return and the return shall be accompanied by proof of payment of such tax and interest, if any. What is contemplated under S.140A is payment of tax on the admitted income furnished in the self assessment and the payment of tax on such income before furnishing the return. As aforesaid the petitioner had paid the tax before submitting the return under S.140A. That the setting aside of the regular assessment does not mean that the self assessment made under S.140A has been set aside. Even if the regular assessment is declared to be void, it has no effect on the self assessment made under S.140A. The direction to refund the tax paid on regular assessment does not mean the tax paid along with the return under S.140A shall be refunded. Because the payment of tax under self assessment is on the admitted income returned by the assessee. When tax has been paid on the admitted income, even if the income added by the Income tax Officer by way of addition in the regular assessment has been set aside in the appeal or revision, the assessee has no legal right to claim refund of the tax so paid because what has been set aside is not the self assessment but the regular assessment. Both the assessments are separate and distinct and there is no question of merger of self assessment with regular assessment.