KAMAL KISHORE GUPTA Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THE short question of law raised in this petition filed under Art. 226 of the Constitution is whether, in the facts and circumstances of the case and in view of the provisions of s. 194C of the IT Act, 1961 (for brevity, 'the Act') r/w Art. 265 of the Constitution, are the respondents bound in law to make the refund of amount of Rs. 8,252 which has been paid by the petitioner by way of advance payment of tax inter alia under s. 210 of the Act for the asst. yr. 1981 -82 for which no regular assessment was made and the same was allowed to become time -barred by the ITO. be Rs. 33,609.

(2.) THE tax payable on the basis of return came to be Rs. 6,758 only and a sum of Rs. 15,010 had already been deducted at source during the accounting year 1980 -81 by the executive engineer, construction division, Palwal under s. 194C of the Act. Therefore, an excess amount of Rs. 8,252 came to be paid by way of tax. The petitioner filed of Rs. 8,250 was required to be amended. The petitioner appeared before the ITO and did not raise any objection to the Thus, the total amount deposited by the petitioner was Rs. 9,398 (Rs. 6,760 + Rs. 2,638) as tax for the asst. yr. 1981 - 82.

(3.) IT is admitted case of the parties that no assessment order has been passed by the ITO on the basis of the return filed by the petitioner within the stipulated period of two years as envisaged by the provisions of s. 153 of the Act. As a result, the petitioner had made a claim of refund of Rs. 9,398 which he had deposited as advance tax. The writ petition was filed primarily placing reliance on a judgment of this Court in the case of Deep Chand Jain vs. ITO (1984) 41 CTR (P&H) 149 : (1984) 145 ITR 676 (P&H) because in that case the regular assessment had become time barred and the provisions of Art. 265 were interpreted to mean that such payment of tax would not be authorised by law as the collection of tax also involves computation and assessment by passing assessment order.