HIGH COURT OF KARNATAKA Allowability of claim for refund of TDS when wrongly remitted to revenue by employer

Allowability of claim for refund of TDS when wrongly remitted to revenue by employer

In the light of section 240 of the IT Act, 1961, an obligation is cast on the revenue to effect the refund, without having to call upon the employees to apply for refund claim.

HIGH COURT OF KARNATAKA

S. Thigarajan

v.

ACIT

W.P.No. 11044 of 2009 (T-IT)

August 6, 2009

RELEVANT EXTRACTS:

** ** ** ** ** ** ** ** ** ** ** **

11. Before proceeding to examine the contentions of the parties it is useful to extracts section240 and section 244-A (1)(a) & (b) which reads thus:-

“ 240. Refund on appeal, etc. – Where, as a result of any order passed in appeal or other proceeding under this Act, refund of any amount becomes due to the assessee, the Assessing Officer shall, except as otherwise provided in this Act, refund the amount to the assessee, without his having to make any claim in that behalf:

Provided that where, by the order aforesaid:-

(a) an assessment is set aside or cancelled and an order of fresh assessment is directed to be made, the refund, if any, shall become due only on the making of such fresh assessment;

(b) the assessment is annulled, the refund shall become due only of the amount, if any, of the tax paid in excess of the tax chargeable on the total income returned by the assessee”.

"244-A. Interest on refunds --- (1) where refund of any amount becomes due to the assessee under this Act, he shall, subject to the provisions of this section, be entitled to receive, in addition to the said amount, simple interest thereon calculated in the following manner, namely:-

(a) where the refund is out of any tax collected at source under section 206-C or paid by way of advance tax or treated as paid under section 199, during the financial year immediately preceding the assessment year, such interest shall be calculated at the rate of one-half per cent for every month or part of a month comprised in the period from the 1st day of April of the assessment year to the date on which the refund is granted:

provided that no interest shall be payable if the amount of refund is less than ten per cent of the tax as determined under sub-section (1) of section 143 or on regular assessment;

(b) in any other case, such interest shall be calculated at the rate of two-third per cent for every month or part of a month comprised in the period or periods from the date or, as the case may be, dates of payment of tax or penalty to the date on which the refund is granted.

Explanation – For the purpose of this cause, “ date of payment of tax or penalty” means the date on and from which the amount of tax or penalty specified in the notice of demand issued under section 156 is paid in excess of such demand”.

12. An examination of the orders impugned discloses rejection of the revenue’s contention that allotment of shares to the employees under the stock option offered by the employer was a perquisite, and as a consequence, the TDS remitted to the revenue, by the employer M/s Infosys, by deducting from out of the salary of the petitioners, was to be refunded. This is axiomatic in the light of section 240 of the Act, an obligation cast on the revenue to effect the refund, without having to call upon the petitioners to apply for refund claim. So also in view of section 244-A of the Act, the Revenue is bound to pay interest at one half per cent on the amount of refund, to the petitioners.

** ** ** ** ** ** ** ** ** ** ** **


Posted at www.taxmannindia.blogspot.com
Get Free Quality SMS updates from my blog on your MOBILE:http://labs.google.co.in/smschannels/subscribe/ca_taxmannindia
OR
Send a message JOIN ca_taxmannindia to 9870807070 thru ur mobile nd receive updates