We generally find that TDS certificates are received in quite a few cases after the filing of the return. A petition for rectification for refund by rectification of the order under Sec. 143(1) or on passing a fresh order where there had been no earlier order is not being entertained by some officers. Some officers are not entertaining the same even when a revised return is filed for claiming the TDS credit. What is the correct course of action?
If the claim for adjustment of TDS credit has been made in the original return, though the assessee had not filed TDS certificates along with the return, there is no bar for the assessee to press for adjustment of credit even on the basis of TDS certificates now received. In fact, it should be possible to make such adjustment/s and issue refund, even if the assessee had not claimed credit for the same. It is because Sec. 155(14) specifically authorises the credit in cases, where the TDS certificates were not filed along with the return.
As long as it is filed within two years of the end of the assessment year, it authorises the assessing officer to amend the intimation making Sec. 154 applicable in such cases.
Since this is a special provision, it will override the requirement of an order under Sec. 143(1), which does not now permit any adjustment other than what is contained in the return after prima facie adjustment is dispensed with from June 1, 1999. Sec. 155(14) is an independent provision.
There is no justification for the assessing officer for denying the refund by giving credit for tax deducted, whether the claim for such adjustment had been made in the return already filed or not.
Where the assessee files a revised return claiming credit for TDS certificates received after the return, there should be no justification at all for denial of credit.
In a case where the assessing officer declined to entertain the TDS claim which was not made in the return on the ground that his power was limited to the return after June 1, 1999, the argument that the assessee is entitled to the adjustment under Sec. 155(14) was, however, not placed before the High Court.
It is for this reason, that the High Court upheld the order of the assessing officer that he had no jurisdiction on a writ petition filed by the assessee but all the same directed the assessing officer to entertain the claim, if the assessee files a revised return even it is filed beyond the time limit for revised return by condoning the delay in Mukesh C. Patel v CIT (2011) 238 CTR (Kar) 332. Apparently, the High Court did not notice that it is the Board which can condone the delay under Sec. 119(2)(b), if the time limit for revised return has already expired.
But then in such cases, where the High Court ordered refund, subject to merits, the assessing officer would have to get approval from the Board on his own. But where the
revised return is within time, there is not even this hitch in getting the refund.
In the result, refund cannot be denied in such cases. It is for the assessees to get the remedies available by law. If it is not forthcoming in spite of application, a complaint may be lodged before the Joint Commissioner or the Grievance Cell of the Commissioner failing which a complaint to the Ombudsman can also be made, so that it is not necessary for a person to file a writ petition as was done in this case before the Karnataka High Court cited above.
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