The High Court Of Madhya Pradesh(Division Bench v. Principal Chief Commissioner Of Income Tax, Bhopal

THE HIGH COURT OF MADHYA PRADESH(DIVISION BENCH) WRIT PETITION NO. 17791/2020 Smt. Seema Jain -Versus- Principal Chief Commissioner of Income Tax, Bhopal. Shri G.N. Purohit, learned Senior Counsel, with Ms. UmaParashar, learned counsel for the petitioner.Shri Sanjay Lal, learned counsel for the respondent. ___________________________________________________ CORAM: Hon’ble Shri Justice Sanjay Yadav, Acting Chief JusticeHon’ble Shri Justice Vijay Kumar Shukla, Judge. O R D E R (Jabalpur, dated 17-12-2020) Per : Sanjay Yadav, Acting Chief Justice.- Challenge is to a communication dated 15.10.2020;whereby, an application filed by the petitioner under Section 119(2) (b) of Income Tax Act, 1961 regarding Assessment Year2021-22 (PAN ) for refund has been rejected. Thereason being that clause (b) of sub-section (2) of Section 119 of 1961Act provides opportunity to grant condonation of delay for claim ofrefund in the cases where delay has occurred in the claim thereof;whereas, the claim of the petitioner pertains to Assessment Year 2021- 22 which can be claimed in normal course of time as prescribed underthe provisions of the Act of 1961. 2.The relevant facts giving rise to claim of refund briefly are that,the petitioner on 22.6.2020 sold a hall at Dava Bazar, Napier Town,Jabalpur for sale consideration of Rs.47,18,000/-. The index costwhereof works out to Rs.23,16,651/- resulting in long term capitalgain of Rs.24,01,348/-. Claiming benefit of unused exemption limit ofRs.1,66,800/-, it is urged that, the total taxable capital gain works outto Rs.22,34,548/- and the tax payable thereon at the rate of 20.8%works out to Rs.4,64,785/-. It is urged that the petitioner actuallywanted to deposit advance tax of Rs.4,50,000/- before 15[th] September,2020; however, while preparing the challan vide Serial Number 00001and BSR Code 0004707, a bona fide mistake occurred and in place ofRs.4,50,000/- the challan was prepared for Rs.45,00,000/-. Thecheque was deposited through the State Bank of India, JawaharganjBranch, Jabalpur on 14.9.2020. The petitioner realising the mistakecommitted in depositing the advance tax of Rs.45,00,000/- in place ofRs.4,50,000/- and the fact that the same would be returned in normalcourse only after submission of return after 31[st] March 2021; whereasthe money was required for solemnizing the marriage of her daughter,the petitioner filed an application before the Principal ChiefCommissioner of Income Tax (referred as PCCIT), Bhopal for refundof excess amount of tax which came to be rejected by impugnedcommunication. 3.While not disputing the legal position as is borne out from theprovisions contained under Section 239 of the Act of 1961 read withRule 41 (2) of the Income Tax Rules, 1962, it is submitted by learnedcounsel for the petitioner that it will be within the jurisdiction of thisCourt under Article 226 of the Constitution of India to issue amandamus to the respondents to refund the excess amount which wasmistakenly deposited so that the money can be utilized for themarriage of her daughter. Learned counsel for the petitioner has reliedupon the decision in State of Madhya Pradesh v. Bhailal Bhai(AIR 1964 SC 1006) to substantiate the contention that it is within thejurisdiction of this Court under Article 226 of the Constitution of Indiato direct the respondent to refund the excess amount of tax paidwithout further waiting to file an application for refund on completionof previous year, i.e., after 31.3.2021. 1964 SC 1006) to substantiate the contention that it is within thejurisdiction of this Court under Article 226 of the Constitution of Indiato direct the respondent to refund the excess amount of tax paidwithout further waiting to file an application for refund on completionof previous year, i.e., after 31.3.2021. 4.Respondents have filed the return. It is contended that theapplication preferred by the petitioner invoking provisions containedunder Section 119 (2) (b) of 1961Act being misconceived and rightlyrejected by the PCCIT. It is further contended that any refundwhatsoever can be claimed by filing income tax return aftercompletion of previous year i.e., after 31.3.2021. It is contended thatthe decision relied on by the petitioner in State of Madhya Pradesh v.Bhailal Bhai (supra) is of no assistance to the petitioner because thatwas the case where the allegations were that the incumbent has been assessed to tax under a void legislation and having paid it under amistake is entitled to get it back. 5.Considered the rival submissions. 6.It is not in dispute that Rs.45,00,000/- has been deposited by thepetitioner on 14.9.2020 as advance tax. The petitioner is an assessee.It is also not in dispute that income earned by the petitioner isassessable to income tax and is under an obligation under Section 139of 1961 Act to furnish a return of income during the previous yearwhich in the present case would be 2020-21. Furthermore, Chapter 19of the Act of 1961 makes provisions regarding refund. Section 237stipulates that “If any person satisfies the assessing officer that theamount of tax paid by him/her or on his/her behalf or treated as paidby him/her or on his/her behalf for any assessment year exceeds theamount with which he/she is properly chargeable under the Act of1961 for that year, he/she shall be entitled to a refund of the excess.Section 239 of the 1961 Act makes provision in form of claim forrefund and limitation. Sub-Section (1) of Section 239 stipulates thatevery claim for refund under Chapter 19 shall be made in theprescribed form and verified in the prescribed manner. Sub-section(2) of Section 239 provides for a limitation period stipulating thereinthat no claim shall be allowed unless it is made within the periodspecified under clause (a) (b) (c) and (d) of sub-section (2) of Section239 of 1961 Act. 6.Rule 41 of Income Tax Rules, 1962 stipulates that “41. Refund claim (1) A claim for refund under Chapter XIX shall be madein Form No. 30. (2) The claim under sub-rule (1) shall be accompanied bya return in the form prescribed under Section 139 unlessthe claimant has already made such a return to theAssessing Officer. (3) Where any part of the total income of a personmaking a claim for refund of tax consists of dividends orany other income from which tax has been deductedunder the provisions of sections 192 to 194, section 194Aand section 195, the claim shall be accompanied by thecertificates prescribed under section 203. (4) The claim under sub-rule (1) may be presented by theclaimant in person or through a duly authorised agent ormay be sent by post.” 7.It is, therefore, clear from the provisions contained underSection 239 of 1961 Act read with Rule 41 (2) of 1962 Rules that the claim for refund can be only on completion of previous year which in the present case would be after 31.3.2021. We are not commended toany independent provision conferring jurisdiction in the PCCIT toorder for refund before the completion of previous years, i.e., 2020-21(31.3.2021). The decision relied on by the petitioner in Madhya Pradesh v. Bhailal Bhai (supra) though acknowledges thediscretionary power of the High Court under Article 226 of the Constitution of India to issue writs in the nature of mandamus;however, it is observed by their Lordships: 7.It is, therefore, clear from the provisions contained underSection 239 of 1961 Act read with Rule 41 (2) of 1962 Rules that the claim for refund can be only on completion of previous year which in the present case would be after 31.3.2021. We are not commended toany independent provision conferring jurisdiction in the PCCIT toorder for refund before the completion of previous years, i.e., 2020-21(31.3.2021). The decision relied on by the petitioner in Madhya Pradesh v. Bhailal Bhai (supra) though acknowledges thediscretionary power of the High Court under Article 226 of the Constitution of India to issue writs in the nature of mandamus;however, it is observed by their Lordships: “17.…..........Whether repayment should be ordered inthe exercise of this discretion will depend in each case onits own facts and circumstances. It is not easy nor is itdesirable to lay down any rule for universal application.” 8.In this context reference can also be had of the decision inSuganmal v. State of M.P. and others (AIR 1965 SC 1740) whereinSuganmal v. State of M.P. and others (AIR 1965 SC 1740) wherein while dwelling on the issue as to whether a petition under Article 226of the Constitution of India praying solely for the refund of moneyalleged to have been illegally collected by the State as a tax, ismaintainable under Article 226 of the Constitution of India, it washeld: “6. On the first point, we are of opinion that though theHigh Court have power to pass any appropriate order in theexercise of the powers conferred under Article 226 of theConstitution, such a petition solely praying for the issue ofa writ of mandamus directing the State to refund the moneyis not ordinarily maintainable for the simple reason that aclaim for such a refund can always be made in a suitagainst the authority which had illegally collected themoney as a tax. We have been referred to cases in whichorders had been issued directing the state to refund taxesillegally collected, but all such had been those in which thepetitions challenged the validity of the assessment and forconsequential relief for the return of the tax illegallycollected. We have not been referred to any case in which the courts were moved by a petition under Article 226simply for the purpose of obtaining refund of money duefrom the State on account of its having made illegalexactions. We do not consider it proper to extend theprinciple justifying the consequential order directing therefund of amounts illegally realised, when the order underwhich the amounts had been collected has been set aside, tocases in which only orders for the refund of money aresought. The parties had the right to question the illegalassessment orders on the ground of their illegality orunconstitutionality and, therefore, could take action underArt. 226 for the protection of their fundamental right andthe Courts, on setting aside the assessment orders exercisedtheir jurisdiction in proper circumstances to order theconsequential relief for the refund of the tax illegallyrealised. We do not find any good reason to extend thisprinciple and, therefore, hold that no petition for the issueof a writ of mandamus will be normally entertained for thepurpose of merely ordering a refund of money to the returnof which the petitioner claims a right.” 9.It is not the case of the petitioner that the excess amount deposited by the petitioner towards advance tax is illegally collectedby the department as would entitle her for the refund of the samewithout following the due procedure prescribed under Chapter XIX ofthe Act of 1961 read with Rule 41 of the Rules of 1962. 10.Since no relief can be granted, petition fails and is dismissed. (SANJAY YADAV) ACTING CHIEF JUSTICE (VIJAY KUMAR SHUKLA) J U D G E