Section 240

Section 240 — the law in short

What the courts have decided on section 240, in one screen. Read this first; open an entry when you need the facts, the reasoning and the source.

• UOI v Tata Chemicals Ltd Supreme CourtHelps taxpayer
  I deducted tax under s.195 because the officer told me to, and the CIT(A) has now held it was not deductible. Do I get interest on the refund, or only the tax back?
  Yes, interest as well. The resident deductor is entitled not only to the refund of the tax deposited under s.195(2) but to have it refunded with interest from the date of payment of the tax. The Revenue was the appellant and its appeals were dismissed. The CBDT has since accepted the position by circular.
• Chironjilal Sharma HUF v Union of India Supreme CourtHelps taxpayerSuperseded by amendment
  Cash seized in a search was appropriated against a tax liability that the Tribunal later knocked out. The Department has paid me interest from the date of the assessment to the date of refund. Am I entitled to anything for the years before the assessment?
  Yes. The Supreme Court held that section 132B(4) governs the pre-assessment period in search and seizure matters while sections 240 and 244A govern the post-assessment period as per the order in appeal, and that there is no conflict between them — so interest for the pre-assessment period under section 132B(4) is payable in addition to, and not in substitution for, the interest already paid on the refund. On the provision as it then stood the assessee was held entitled to simple interest at 15 per cent per annum from the day after six months from the section 132(5) order to the date of the last regular assessment.
• Sandvik Asia Ltd v CIT Supreme CourtHelps taxpayer
  Can I still rely on Sandvik Asia to claim interest on the interest due on my refund?
  No. A Full Bench of the Supreme Court in Gujrat Fluro has overruled it and held there is no interest on interest under s.244A, where only statutory interest is leviable. All that survives of Sandvik Asia is compensation for delay in granting interest on a refund under the older scheme of s.244(1A) read with s.240.
• CIT v Shelly Products Supreme CourtCuts both ways
  My assessment was annulled by the Tribunal and the department cannot make a fresh one. Do I get back everything I paid, including the tax on my own returned income?
  No, not everything. The Supreme Court held that liability to income tax under section 4(1) does not depend on an assessment being made, and that the return itself is an admission of the tax due on the income disclosed. So where an assessment is annulled or set aside and no fresh assessment can be made, the assessee gets a refund of everything paid in excess of the tax chargeable on the returned income, but the department may keep the tax referable to that returned income. Retaining it does not offend Article 265.
• Gopal Vazirani v Principal Commissioner of Income Tax High CourtHelps taxpayerUnder appeal
  The Commissioner says the proviso to section 240 shows that returned income is sacrosanct, so he cannot give my client a refund below what he himself returned. Is that right?
  No. The proviso to section 240 bites only in the two situations it describes — an assessment set aside or cancelled with a fresh assessment directed, and an assessment annulled — and says nothing about a case where neither has happened. There is no provision in the Act denying a refund of excess tax where the income ultimately assessable is less than the returned income; an assessee can be asked to pay only such tax as is legally due and nothing more.
• Tata Communications Ltd v Dy CIT High CourtHelps taxpayer
  The department paid my refund but not the s.244A interest. Can I get interest on what is still unpaid?
  Yes. Once the accrued s.244A interest has become part of the sum refundable, withholding part of that sum is simply non-payment, and interest on the unpaid amount arises because of it — not as interest on interest. The department was directed to refund the entire amount due together with s.244A interest.
• Indglonal Investment & Finance Ltd v ITO High CourtCuts both waysValidity unconfirmed
  My client's assessment has become final and I now want the tax back because the levy was wrong. Can I run that argument as a refund claim, or in a writ petition based on Article 265?
  No. In a claim under Chapter XIX section 242 forbids the assessee from questioning the correctness of an assessment or other matter that has become final and conclusive, or asking for a review of it; the authorities cannot go behind the assessment order while examining a refund. Article 265 is not violated where tax has been collected under a valid enactment and the 'wrong' order has become final — the remedy is to attack the order itself, in appeal, revision or a writ, and refund follows only as a consequence of that.
• Punjab State Warehousing Corporation v CIT High CourtHelps departmentValidity unconfirmed
  My client's old assessment was set aside, a fresh assessment produced a large refund, and no interest was paid. For a year before 1989-90, which section gives him interest?
  For assessments up to 1988-89 there is no single interest provision: section 214 runs only to the date of the regular assessment, section 244(1) runs from three months after the order under section 240, section 244(1A) is confined to amounts paid after 31 March 1975 in pursuance of an order of assessment or penalty, and section 243 runs from three months after the total income is determined or the refund claim is made. Where the refund followed a fresh assessment and was granted the very next month, none of them was attracted, and the claim failed.
• Saurashtra Cement and Chemical Industries Ltd v ITO High CourtHelps department
  The Tribunal has annulled my client's assessment as time-barred. Does he get back the whole of the advance tax, TDS and self-assessment tax he had paid?
  No. What Chapter XIX refunds is only the amount paid wrongly or in excess of what is properly chargeable under the Act; it does not authorise refund of tax that was properly collected. The failure of the regular assessment — whether by annulment or by its becoming time-barred — does not turn tax payable on the assessee's own returned income into tax wrongly collected.
• Smt. Shantibai v CIT High CourtHelps taxpayerSuperseded by amendment
  The Assessing Officer has determined the income at nil after the Tribunal cancelled the assessment, but has noted that the tax already deposited will not be refunded. Is that refusal appealable, or must I file a writ?
  It is appealable. An order of the officer refusing to refund an amount the assessee claims to be in excess of the tax properly chargeable is, in substance, an order under section 237, and an appeal lies against it — under section 246(n) as it then stood, and under section 246A(1)(i) today. That the same obligation could also be enforced by a mandamus or a civil suit does not take away the statutory right of appeal.

Listed strongest first: Supreme Court, then High Court, then Tribunal, then CBDT. Nothing here has yet been read in full by a chartered accountant — open an entry to see where it came from.