S. S. CHADHA ( 1 ) THIS petition under Article 226 of the Constitution of India seeks a writ of mandamus directing therespondents to make a refund of tax on provisional assessmentunder Section 141-A of the Income. tax Act, 1961 for the assessment year 1973-74. ( 2 ) THE petitioner, M/s. B. K. Khaiina and Co. Pvt. Ltd. is aprivate limited company (hereinafter called the Company ). Itcarries on business as machinery distributor and consulting engineers with registered office at 14-F, Cannaught Place, New Delhi. The Income-tax Officer, Special Circle IX, New Delhi, who had atthe relevant time the jurisdiction in respect of the assessment ofthe petitioner under the Income-tax Act, 196! (hereinafter referred to as the Act), issued on 23/05/1972 a notice of demand for payment of advance tax under Section 210 of the Actfor the assessment year 1973-74 (financial year 1972-73 ). Thecompany paid advance tax during the financial year 1972-73amounting to Rs. 2,13,0951 -. The Company furnished on 16/10/1973 its return of income for the assessment year 1973-74. la the return of income, the Company declared therein a loss o. frs. 1,65,2001 -. The statement of pre-paid taxes was given inpart II of the return. In it was included a sum of Rs. 5,830. 16as tax deducted at source (dividends) and advance tax paid o. nvarious dates amounting to Rs. 2,13,095. 00. ( 3 ) THE case of the Company is that as no regular assessmentwas likely to be made or had been made within six months fromthe date of furnishing of return, the Income-tax Office:- was dutybound under the proviso to Section 141-A of the Act to refundthe amount of pre-paid taxes of Rs. 2,13,095. 00. ( 3 ) THE case of the Company is that as no regular assessmentwas likely to be made or had been made within six months fromthe date of furnishing of return, the Income-tax Office:- was dutybound under the proviso to Section 141-A of the Act to refundthe amount of pre-paid taxes of Rs. 2,18,9251- immediately aftetexpiry of the period of six months from the date of the filingon the basis of the return and the accounts and documents accompanying it, the Income-tax Officer may,if he is of opinion that the regular assessment of theassesses is likely to be delayed, proceed to make, iaa summary manner, a provisional assessment of theturn refundable to the asscssee, after making suchadjustments to the Income or loss declared in thereturn as are required to be made under sub-section (2) with reference to such return, account and documents, and for the purposes of the adjustments referred to in clause (iv) of sub-section (2), also withreference to the record of the assessments, if any, ofpast years: PROVIDED that in a case where the regular assessment isnot made within six months from the date of receipt of the return, the Income-tax Officer shallproceed to make the provisional assessment underthis section. " ( 9 ) RELYING on "jaimat Rai v. State of Maharashtra", 1967 (3)S. C. R. 414 (1), Shri K. C. Bhatnagar, the learned counsel for thepetitioner urges that the imperative nature of the provisions ofsection 1. 41-A is borne out by the use of the word "may" in thefirst part of the provision and the word "shall" in the same provision in the proviso. It is urged that where the legislature hasused the word "shall" and "may" in the same provision, that itselfis an indication, that the word "shall" has been used in a mandatory sense. The use of the word "may" in the first part and ofthe word "shall" in the second firmly establish the difference". ( 10 ) IT is next urged that the assessment has been set aside by the Commissioner of Income-tax (Appeals) in the order dated 13/10/1981. When the assessment order was set aside bythe Commissioner of Income-tax and the case remanded to theincome-tax Officer for de novo assessment, the counsel submitsthat the position is as if no assessment has been made. ( 10 ) IT is next urged that the assessment has been set aside by the Commissioner of Income-tax (Appeals) in the order dated 13/10/1981. When the assessment order was set aside bythe Commissioner of Income-tax and the case remanded to theincome-tax Officer for de novo assessment, the counsel submitsthat the position is as if no assessment has been made. Reliance ( 12 ) THERE was no provisions for making a provisional assessment to determine the amount of tax refirndable to the tax-payeron the basis of his return of income. In a case where the taxdeducted at source under the provisions of Chapter XVII-B andthe advanced tax paid under the provisions of Chapter XVII-Cduring a financial year exceeded the amount of tax due-on thetotal income of the tax-payer for the next following assessmentyear, the excess was refundable to him only on completion of theregular assessment. In order to avoid inconvenience and hardshipto the tax-payers due to the delay in issue of refunds in caseswhere the completion of,regular assessment is. likely to be delayed,the Finance Act, 1968introduced section 141-A in the Act enabling tax-payer to claim refund of tax deducted at source or paidin advance in excess of the tax due on the basis of the return ofincome and the accounts and documents accompanying it. It enabled the Income-tax Officer to proceed to make in a summarymanner a provisional assessment of the sum refundable to the assessee. During the debate on the Finance Bill, 1968 in Lok Sabhathe Deputy Prime Minister and Minister of Finance assured thehouse that where the regular assessment has been delayed for aperiod of six months from the date of the receipt of the return,the Income-tax Officer will make a provisional assessment andgrant the refund -due to the tax-payer. Though no such periodwas fixed in the statutory provisions, the Central Board of Directtaxes had issued circular No. 6-F of 1968 dated 6/07/1968 informing all Income-tax Officers of this assurance for compliance. . The legislative mandate was given by the Taxation Laws ("amendment) Act, 1970 with effect from 1/04/1971 when provisowas added that in case where regular assessment is not madewithin six months from the date of receipt of return, the Income-tax Officer shall proceed to make the provisional assessment undersection 141-A. ( 13 ) UNDER Section 141-ACI) as introduced by the Financeact. 1968, the Income-tax Officer is. 1968, the Income-tax Officer is. authorised to make a provisional assessment of the sum refundable to the tax-payer on thein a case where the regular assessment cannot be made within sixmonths from the date of the receipt erf the return. Power t makea provisional assessment was introduced by the Finance Act,1968 and was clarified in the debate on the Finance Bill, 1968 butpossibly there was some ambiguity. Amendment was made byadding the proviso to clear that ambiguity. It was with a viewto prevent misinterpretation of the statutory provision empowering provisional assessment for refunds. In my view, the purposewas to make it mandatory for the Income-tax Officer to make provisional assessmeat for refund. in case the regular assessmeatwas delayed by six months. The Income-tax Officer will be boundto make a provisional assessment under Section 141-A so as to /grant refund of the excess tax paid by the tax-payer. ( 15 ) HOWEVER, on facts I am not inclined to grant any reliefto the petitioner who has approached this Court after a regularassessment though set aside. The Income-tax Officer mads regular assessment under Section 143 (3) of the Act on 23/09/1976 and allowed a refund of Rs. 69,6021- which was adjustedagainst the demand for the assessment year 1972-73. The regularassessment, however, has been set aside and there is no existingassessment at present. There would be no purpose in directingthe Income-tax Officer to make provisional assessment for refundas a fresh draft assessment order dated 15/03/1984 computing total income at Rs. 1,82,2901- has been sent to the petitioner. 16. For the above reasons, the writ petition fails and is dismissed with no order as to costs.