JUDGMENT : B.N. Mahapatra, J. - This writ petition has been filed with a prayer to direct opposite party No. 1-ITO. Ward-2(2) Cuttack and opposite party No. 2 Addl. CIT, Range-2, Cuttack for issuance of refund voucher in favour of the petitioner at the (sic) with interest @ 12 per cent per annum on the ground that the action of opposite party Nos. 1 and 2 is contrary to the provisions of the statute. The petitioner's case in a nutshell is that the petitioner filed its return of income on 1st Sept., 2003 for the asst. yr. 2003-04 claiming refund of Rs. 1,70,691. The total tax payable in respect of the income disclosed in the return was Rs. 1,14,800 as against which the tax of Rs. 2,15,491 was deducted at source and advance tax amounting to Rs. 70,000 was paid. Thus against the tax liability of Rs. 1,14,800, Rs. 2,85,491 was paid for the asst. yr. 2003-04. Therefore in the return form under Annex. 1 and in the statement of income under Annex. 2, the petitioner claimed refund of Rs. 1,70,691. Despite filing several representations, since no refund is granted to the petitioner, the present writ petition is filed claiming the above relief. 2. Mr. B. Panda, learned counsel for the petitioner submitted that the refund due to the petitioner is to be paid along with interest @ 12 per cent as provided under s. 243 of the IT Act. If the refund is not granted within a period of three months from the end of the month in which the total income is determined under the Act or in any other case from the end of the month in which the claim for refund is made under Chapter XIX of the IT Act, the Central Government shall pay the assessee simple interest @ 12 per cent per annum on the amount directed to be refunded. Under the scheme of IT Act, once the return is filed, the same is to be processed under s. 143(1) of the IT Act. After the return is processed, question of refund arises on the basis of return and then refund is made to the assessee. In the instant case, till date no proceeding either under s. 148 or under the provisions of the IT Act has been initiated in respect of the return filed for the asst. yr. 2003-04. After the return is processed, question of refund arises on the basis of return and then refund is made to the assessee. In the instant case, till date no proceeding either under s. 148 or under the provisions of the IT Act has been initiated in respect of the return filed for the asst. yr. 2003-04. Therefore, the refund of Rs. 1,70,691 claimed in the return should have been refunded to the petitioner with interest as the said amount has not been granted to the petitioner. The petitioner sent two reminders dt. 18th July, 2008 and 25th July, 2008 requesting opposite party No. 2 to expedite the matter and make payment of the refund due to the petitioner. In spite of receipt of the reminders, opposite party Nos. 1 and 2 had kept mum and maintained silence over the issues and in the process, the matter has been delayed for pretty long period. Thus, the petitioner felt harassed. Since excess amount of tax has been paid through TDS and by way of advance tax than what is due from the petitioner, the petitioner is legally entitled to get refund of the excess amount, but the same has been illegally denied to the petitioner by the opposite parties. 3. Mr. A.K. Mohapatra, learned senior standing counsel appearing on behalf of the opposite parties referring to the counter-affidavit filed by opposite party Nos. 1 to 3 submitted that the claim of the petitioner for refund is barred by time and it is not maintainable. The allegation of the petitioner regarding any apparent inaction and recalcitrant attitude of the IT authorities relating to non-issue of the refunds claimed for the asst. yr. 2003-04 amounting to Rs. 1,70,691 is totally baseless. From the annexures appended to the writ petition, it is found that on behalf of the petitioner for the first time a letter was addressed to the Addl. CIT, Range-2, Cuttack on 16th July, 2008 received in the office on 18th July, 2008 claiming that the refund for Rs. 1,70,691 was not received by the assessee till 16th July, 2008. Under the provisions of the income tax statute, a return of income filed for the asst. yr. 2003-04 has to be processed under s. 143(1) of the IT Act, 1961 by March, 2005. 1,70,691 was not received by the assessee till 16th July, 2008. Under the provisions of the income tax statute, a return of income filed for the asst. yr. 2003-04 has to be processed under s. 143(1) of the IT Act, 1961 by March, 2005. As per the existing administrative regulations, if any refund claimed which is found lawfully payable by the IT Department to the taxpayers exceeds Rs. 1 lakh, it has to be approved by the Range Officer before the refund amount is paid to the assessee. From the registers and records available in the office of the ITO, Ward-2(2), Cuttack, it transpires that necessary action had been duly taken by the AO/Range Officer for processing the return of income and to obtain administrative approval for refund of amount exceeding Rs. 1 lakh in the case of Santuka Agencies for the asst. yr. 2003-04. From verification of return of income filed by the partnership firm on 1st Sept., 2003 along with copies of TDS certificates, computation of total income statement, tax audit report, P&L a/c, balance sheet for the financial year 2002-03, it transpires that as per the TDS certificates the assessee had earned gross interest income of Rs. 11,01,577 on which TDS was made by the payer for Rs. 11,567. Similarly the assessee had executed contract works for gross amount of Rs. 1,57,531 from which TDS was made by the contractee amounting to Rs. 3,310. Further the TDS certificates in respect of commission payment revealed that the gross commission amount was Rs. 17,31,891 from which the payer had deducted TDS for Rs. 96,514. The sum total of TDS amount was Rs. 2,15,491 and the sum total of receipts under the head interest, contract works and commission taken together amounted to Rs. 29,90,999. The verification of tax audit report and P&L a/c enclosed to the return of income filed shows no separate head of receipts in the credit side of the P&L a/c in respect of interest income of Rs. 11,01,577 and contractual works receipts of Rs. 1,57,531. The commission amount credited to the P&L a/c shows total commission of Rs. 18,35,783 whereas as per TDS certificate the commission amount was Rs. 17,31,891. 4. Mr. 11,01,577 and contractual works receipts of Rs. 1,57,531. The commission amount credited to the P&L a/c shows total commission of Rs. 18,35,783 whereas as per TDS certificate the commission amount was Rs. 17,31,891. 4. Mr. Mohapatra further submitted that at the relevant time the AO and the Range Officer had preliminary belief that the P&L a/c having not reflected separately income under the head 'Interest' and contractual receipts, there was an escapement of income assessable to tax. Accordingly, the AO, ITO, Ward-2(2), Cuttack had written a letter to M/s Santuka Agencies, Dolamundai, Cuttack vide letter No. ITO/W-2(2)/CTC/2004-05. Cuttack, dt. 1st June, 2004 requesting him to furnish the details of TDS certificate for processing his return for issue of refund. The said letter was received by M/s Santuka Agencies on 1st July, 2004 through notice server. In response to the said notice, the petitioner did not furnish any clarifications called for by the AO. It is further submitted that the AO had reasons to believe that interest income and contract receipts were not disclosed in the return filed for which a noting was made in the records for issue of notice under s. 148 of the IT Act, 1961. However, there is no evidence available on records regarding actual service of the notice under s. 148 of the IT Act, 1961 on the assessee except the service of letter dt. 1st June, 2004 on the petitioner on 1st July, 2004. It was submitted that since the assessee having not complied with clarifications called for by the AO as per letter served on 1st July, 2004 prima facie the assessee was not entitled to any credit of TDS on the ground that corresponding income of Rs. 11,01,577 towards interest income and contract receipts of Rs. 1,57,531 had not been disclosed in the P&L a/c. In other words, the TDS amount of Rs. 1,15,667 from such interest income and TDS from contract receipts of Rs. 3,310 were not prima facie admissible. 5. Mr. Mohapatra further submitted that the petitioner has an alternative efficacious remedial measure available right now to produce relevant reconciliation of gross receipts from interest income, gross receipt from contract works and gross receipt from commission as per TDS certificate with the figures shown in the P&L a/c for the financial year 2002-03. 3,310 were not prima facie admissible. 5. Mr. Mohapatra further submitted that the petitioner has an alternative efficacious remedial measure available right now to produce relevant reconciliation of gross receipts from interest income, gross receipt from contract works and gross receipt from commission as per TDS certificate with the figures shown in the P&L a/c for the financial year 2002-03. After submission of such clarifications/supporting documents, it can be ascertained as to whether the entire TDS amount is available to the assessee's credit or only a part of the TDS can be allowed corresponding to the gross turnover which has been disclosed in the P&L a/c. No action on the petition filed by the petitioner in July, 2008 i.e. after five years from the date of filing of the return would be taken by the AO as the return filed on 1st Sept. 2003 could not be readily available. 6. On the rival contentions of the parties, the question that arises for consideration of this Court is to whether the petitioner-assessee is entitled to get refund of Rs. 1,70,691 as claimed in its return filed on 1st Sept., 2003 for the asst. yr. 2003-04 along with interest as provided under the IT Act, 1961 and the IT authorities are not justified in not granting the refund claimed by the petitioner ? 7. The undisputed facts are that the petitioner filed its return for the asst yr. 2003-04 claiming refund of Rs. 1,70,691. 8. The petitioner's case is that the income chargeable on his return income is Rs. 1,14,800 as against which Rs. 2,85,491 was paid (Rs. 2,15,491 and Rs. 70,000 through TDS and advance tax respectively). Therefore, the petitioner is entitled to get refund of Rs. 1,70,691. Since no refund was paid, the petitioner sent reminders to the authorities on 18th July, 2008 and 25th July, 2008 respectively requesting opposite party No. 2 to expedite the matter and make payment of the refund due to the petitioner for the period as stated above. In the writ petition, the petitioner has not explained why he remained silent from the date of filing of return from 1st Sept., 2003 till July, 2008 when he made representation. The petitioner has also not explained why it belatedly approached this Court in October, 2011. In the writ petition, the petitioner has not explained why he remained silent from the date of filing of return from 1st Sept., 2003 till July, 2008 when he made representation. The petitioner has also not explained why it belatedly approached this Court in October, 2011. On the ground of delay and laches, though this writ petition is liable to be dismissed, we are not doing so in view of the averments made in para 10 of the counter-affidavit filed by the IT Department to the effect that the petitioner has an alternative efficacious remedial measure available right now to produce relevant reconciliation of gross receipts from interest income/from contract works/from commission as per TDS certificate with the figure shown in P&L a/c for the financial year 2003-04 and after submission of such clarification/supporting documents it can be ascertained about petitioner's entitlement to get the amount of refund on the basis of TDS certificate. 9. Sec. 237 of the IT Act speaks about refund.--The said section reads thus: If any person satisfies the AO that the amount of tax paid by him or on his behalf or treated as paid by him or on his behalf for any assessment year exceeds the amount with which he is properly chargeable under this Act for that year, he shall be entitled to a refund of the excess. Plain reading of this section makes it clear that a person is entitled to claim refund of tax, if the tax paid by him or on his behalf for any assessment year exceeds the tax which he is liable to pay for that assessment year. Sec. 237 further stipulates that only if any person satisfies the AO that he is entitled to a refund then such refund shall be granted. Therefore where there is a dispute as to the entitlement of assessee to get refund, the AO has to cause necessary enquiry and after giving opportunity to the assessee shall come to a conclusion. Though there is no specific provision empowering the AO to investigate such a claim, such a power is implicit and inherent in the AO as would be evident from a plain reading of s. 237. 10. The Allahabad High Court, in the case of Babu Ram Chandra Bhan and Another Vs. Though there is no specific provision empowering the AO to investigate such a claim, such a power is implicit and inherent in the AO as would be evident from a plain reading of s. 237. 10. The Allahabad High Court, in the case of Babu Ram Chandra Bhan and Another Vs. Income Tax Officer and Another, while considering the provision of s. 237 held that a person becomes entitled to refund only when he satisfies the AO that a certain amount is due to him. This satisfaction necessarily involves an inquiry where there is a dispute as to the entitlement to the amount to be refunded. While there is no specific provision empowering the ITO or the AO to investigate such a claim such a power is implicit and inherent in him as would be evident from a reading of s. 237 of the IT Act, 1961. 11. In the instant case, specific case of the opposite parties is that on verification of tax audit report and P&L a/c it reveals that there is no separate head of receipts in the credit side of the P&L a/c in respect of interest income of Rs. 11,01,577 and contract works receipts of Rs. 1,57,531 in relation to which the TDS certificate has been submitted and refund is claimed. The further discrepancy is that the commission amount credited to the P&L a/c shows total commission of Rs. 18,35,783 whereas as per TDS certificate the commission amount was Rs. 17,31,891. Therefore, the AO had written a letter to the petitioner vide letter No. ITO/W-2(2)/CTC/2004-05 dt. 1st June, 2004 to clarify the discrepancy. For better appreciation, the said letter dt. 1st June, 2004 is extracted hereunder. To M/s Santuka Agencies Dolamundai, Cuttack. Sir, Sub : Claim of refund for the asst. yr. 2003-04-matter regarding. While processing your return for issue of refund, it is observed that TDS certificates enclosed with the return indicate your receipts under the heads interest, contract and commission. But P&L a/c submitted with the return does not indicate any interest income and contract receipts. In this connection, your Authorized Representative was requested to furnish the details of interest income and contract receipts. But nothing has been heard so far. You are once again requested to furnish the details within three days from the date of receipt of this letter, failing which report as deemed appropriate will be submitted to the Jt. In this connection, your Authorized Representative was requested to furnish the details of interest income and contract receipts. But nothing has been heard so far. You are once again requested to furnish the details within three days from the date of receipt of this letter, failing which report as deemed appropriate will be submitted to the Jt. CIT, Range - 2, Cuttack. Yours faithfully, Sd/- (U.C. Satpathy) ITO, Ward-2(2), Cuttack. 12. Opposite party in para 7 of their counter-affidavit stated that the said letter was received by M/s Santuka Agencies, Dolamundai, Cuttack on 1st July, 2004. There is no material evidence on record to show that the assessee had produced any reconciliation statement of interest and contractual receipts as per TDS certificate compared to turnover credited in the P&L a/c as per the audited statement. No rejoinder was filed by the petitioner denying the facts stated in para 7 of the counter-affidavit. 13. In view of the provisions of s. 237 of the IT Act and averments made in paras 6 and 7 of the counter-affidavit, it cannot be said that there is any laches on the part of opposite party-Department in not granting refund to the petitioner as claimed in Its return. 14. At this juncture, it is relevant to reproduce the relevant portion of paras 10 and 13 of the counter affidavit. 10...The assessee having not apparently complied with the clarifications called for vide letter dt. 1st June, 2004 served on the assessee on 1st July, 2004, the IT authorities could not give credit to the entire TDS claimed insofar as there was no mention in the P&L a/c about any interest income or income from execution of contract works and also on account of discrepancy between commission income shown in the P&L a/c and gross commission received as per TDS certificates. In this context the petitioner has an alternative efficacious remedial measure available right now to produce relevant reconciliation of gross receipts from interest income/gross receipt from contract works/gross receipt from commission as per TDS certificates with the figures shown in the P&L a/c for the financial year 2002-03. In this context the petitioner has an alternative efficacious remedial measure available right now to produce relevant reconciliation of gross receipts from interest income/gross receipt from contract works/gross receipt from commission as per TDS certificates with the figures shown in the P&L a/c for the financial year 2002-03. After submission of such clarifications/supporting documents it can be ascertained as to whether the entire TDS amount is available to the assessee's credit or only a part of the TDS claim can be allowed corresponding to the gross turnover which has been disclosed in the P&L a/c. 13...It is reiterated here that the assessee has an option to file the clarifications called for by the AO about the reconciliation of interest income as per TDS certificate/contractual receipts as per TDS certificate/commission receipts as per TDS certificate vis-?-vis amount credited in the P&L a/c for the financial year 2002-03 before the jurisdictional AO with supporting books of accounts and documents and necessary action shall be taken by the present IT authorities on the basis of such evidences which may be furnished. The petitioner has an alternative efficacious measure to redress its grievances by producing the clarifications called for by the AO in June, 2004 with supporting books of accounts. 15. In view of the above, we direct the petitioner to appear before opposite party No. 1 ITO, Ward-2(2), Cuttack within a period of four weeks from today. If the petitioner appears before the AO and satisfies him with supporting documents about his entitlement to get refund in terms of s. 237 of the IT Act, the AO is directed to grant refund immediately along with interest in accordance with law. With the aforesaid observations and directions, the writ petition is disposed of. Final Result : Disposed Off