This seems to be a fun little situation that I am stuck in.
Facts: I am an individual, and I didn't file my ITR within the due date (even though I was required to, lets not focus on why I didn't file). I was unable to file a belated return as well. Now based on my reading, filing an updated return could have been my last resort, but since my return will result in a refund, I cannot file an updated return as well. So effectively, even though I have no tax income tax liability, my refund is essentially gone for no fault of my own (basically some TDS/TCS was deposited which I forgot about).
Question: Is it possible for me to claim the refund somehow? Can I make an application to some income-tax authority seeking directions for a refund or file a PIL seeking directions for a refund?
I have successfully claimed a refund after filing an updated return. It's a misconception that many CAs and tax lawyers like to spread that it's not possible. It will take some time and your returns will be closely scrutinised, that's all.
Refund under 139(8A) is impossible. Law expressly debars it. You might have claimed it but you will NOT get it. & NO, 139(8A) does not mean scrutiny. It is an independent thing.
25% extra tax + interest + late fees will be incurred & despite that if there is refund, it will NOT be granted. Anyone claiming refund under 139(8A) is lying to either others or person in mirror.
Following is the TEXT of law: [(8A) Any person, whether or not he has furnished a return under sub-section (1) or sub-section (4) or sub-section (5), for an assessment year (herein referred to as the relevant assessment year), may furnish an updated return of his income or the income of any other person in respect of which he is assessable under this Act, for the previous year relevant to such assessment year, in the prescribed form61, verified in such manner and setting forth such particulars as may be prescribed, at any time within twenty-four months from the end of the relevant assessment year: Provided that the provision of this sub-section shall not apply, if the updated return,—
(a) is a return of a loss; or
(b) has the effect of decreasing the total tax liability determined on the basis of return furnished under sub-section (1) or sub-section (4) or sub-section (5); or
(c) results in refund or increases the refund due on the basis of return furnished under sub-section (1) or sub-section (4) or sub-section (5),
of such person under this Act for the relevant assessment year:
If you have valid reasons for not filing the 139(1) return on time, then apply under s 119(2) to the CBDT for extension of time for furnishing return under 139(1). Rely on Sitaldas Motwani, Artist Tree etc judgments. If the CBDT rejects, then file a writ. Updated return will not work - 139(8A) Proviso (c) will expressly bar a refund claim.
That's what I thought, but I was also thinking to interpret proviso (c) to not apply in this case by taking an interpretation that proviso (c) applies ONLY if one has filed a return. Emphasising on the part "due on the basis of return furnished"
"results in refund or increases the refund due on the basis of return furnished under sub-section (1)"
"Due on the basis of return filed" qualifies increases the refund, not 'results in refund'.
The point is arguable but if you have genuine and valid reasons for non filing, then going the 119 plus writ route is better. HCs can be sympathetic if the facts are with you, and cbdt unquestionably has the power (they won't exercise, hence writ after they reject). If you try to argue the law point that it is not covered under clause (c), you have far less going for you (courts are rightly concerned bout the consequences of a legal interpretation to be more conservative if relief requires creativity in interrpetation, than if they can give relief on the facts without deciding larger issues)
Facts: I am an individual, and I didn't file my ITR within the due date (even though I was required to, lets not focus on why I didn't file). I was unable to file a belated return as well. Now based on my reading, filing an updated return could have been my last resort, but since my return will result in a refund, I cannot file an updated return as well. So effectively, even though I have no tax income tax liability, my refund is essentially gone for no fault of my own (basically some TDS/TCS was deposited which I forgot about).
Question: Is it possible for me to claim the refund somehow? Can I make an application to some income-tax authority seeking directions for a refund or file a PIL seeking directions for a refund?
25% extra tax + interest + late fees will be incurred & despite that if there is refund, it will NOT be granted. Anyone claiming refund under 139(8A) is lying to either others or person in mirror.
Following is the TEXT of law:
[(8A) Any person, whether or not he has furnished a return under sub-section (1) or sub-section (4) or sub-section (5), for an assessment year (herein referred to as the relevant assessment year), may furnish an updated return of his income or the income of any other person in respect of which he is assessable under this Act, for the previous year relevant to such assessment year, in the prescribed form61, verified in such manner and setting forth such particulars as may be prescribed, at any time within twenty-four months from the end of the relevant assessment year: Provided that the provision of this sub-section shall not apply, if the updated return,—
(a) is a return of a loss; or
(b) has the effect of decreasing the total tax liability determined on the basis of return furnished under sub-section (1) or sub-section (4) or sub-section (5); or
(c) results in refund or increases the refund due on the basis of return furnished under sub-section (1) or sub-section (4) or sub-section (5),
of such person under this Act for the relevant assessment year:
"Due on the basis of return filed" qualifies increases the refund, not 'results in refund'.
The point is arguable but if you have genuine and valid reasons for non filing, then going the 119 plus writ route is better. HCs can be sympathetic if the facts are with you, and cbdt unquestionably has the power (they won't exercise, hence writ after they reject). If you try to argue the law point that it is not covered under clause (c), you have far less going for you (courts are rightly concerned bout the consequences of a legal interpretation to be more conservative if relief requires creativity in interrpetation, than if they can give relief on the facts without deciding larger issues)