Re: EXCESS PAYMENT OF TAX PAYABLE AS PER FORM-3

By mistake We have paid in excess of tax payable as per Form-3 of Vivad se Vishwas scheme. Can we get refund of excess amount of tax paid after filing of form-4 /

As per explanation to section 7 of VSVA, it is clarified that where the declarant had, before filing the declaration, paid any amount under the Income-tax Act in respect of his tax arrears which exceeds the amount payable under VSVA, he shall be entitled to a refund of such excess amount,  but shall not be entitled to interest on such excess amount under section 244A of the Act.  In  Nirmala L. Mehta  v. A. Balasubramanian (2004) 269 ITR 1 (Bom.)(HC)  (11) 

 “There cannot be any estoppel against the statute, Article 265 of the Constitution of India in unmistakable terms provides that no tax shall be levied or collected except by authority of law. Acquiescence cannot take away from a party the relief that he is entitled to where the tax is levied or collected without authority of law”. [Also refer, CIT v. V.MR.P. Firm, Muar (1965) 56  ITR 67 (74)]

CIT v. Shelly Products (2003) 261 ITR 367 (SC)  (382 )

“If the assessee has by mistake or inadvertence or on account of ignorance, included in his income any amount which is exempted from payment of Income-tax or is not income within the contemplation of law, he may like wise bring this to the notice of the assessing authority, which if satisfied, may grant him relief and refund the tax paid in excess  if any“.

 

Article. 265 of the Constitution of India reads as under ; t “No tax shall be levied or collected except by authority of law“. The collection of tax has to be also within the frame work of law. The Circular No. 14 (XL-35), dt. 11/04/1955, also states that a duty is cast upon the Assessing Officer  to assist and aid the assessee in the matter of taxation. Assessing Officers  are supposed to advise the assessee and guide them and not  take advantage of any error or mistake committed by the assessee or of their ignorance. The function of the Assessing officer  is to administer the statute with solicitude for public exchequer with an inbuilt idea of fairness to taxpayers. The scope of the above circular is explained in CIT v. Ahmedabad  Keiser-E. Hind Mills Co. Ltd  (1981)  128 ITR 486 (Guj.) (HC) (492), Parekh Bros v. CIT (1984) 150 ITR 105 (Ker) (HC) (118 ),  Dattatraya Gopal Sathe v. CIT (1984) 150 ITR 460 (Bom.)(HC) (463-464)

There is no estoppel against the law , if the amount is paid in excess the assessee shall be entitle to get the refund . The assessee should write to the Designated Authority to grant the refund . In case the refund is not granted , the assessee may have to file Writ before High Court .    

 

 

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