TMI Blog2024 (5) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... MIR HIGH COURT] once it is found that the petitioner has no tax liability, the respondents cannot be permitted to levy the tax and collect the same in contravention to Article 265 of the Constitution of India, which provides a constitutional safeguard on levy and collection of tax. It is true that this Court is not to act as Court of appeal while exercising the writ jurisdiction, but at the same time where the admitted facts disclosed non- exercise of jurisdiction by an adjudicatory authority and a citizen is subjected to tax not payable by him, interference by this Court is warranted. As in our judgment, respondent No.2 has erred in holding that the error shown above does not fall within the ambit of error apparent on the face of record and consequently, cannot be corrected under Section 154 of the Act. The view taken by the learned respondent No.2 is hyper technical in nature and runs contrary to the scheme flowing from Article 265 of the Constitution of India. So far the judgment of Division Bench of this Court in the case of MS Educational and Welfare Trust [ 2022 (3) TMI 901 - TELANGANA HIGH COURT] is concerned, it is noteworthy that this Court opined that the power of rectifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitution of India, in no uncertain terms makes it clear that tax cannot be levied or collected beyond authority of law. The law permits levy of tax once on retention money , which has been admittedly collected in the year 2015-16. The subsequent payment of the tax for the years 2016-17, 2017-18 and 2018-19 was inconsonance with law because the income from retention money was relating to those years. The previous payment of tax in the year 2015-16 was by mistake and said amount should have been refunded by invoking power under Section 154 of the Act. Respondent No.2 committed an error in rejecting the same. In support of this submission, he placed reliance on the judgments of Bombay High Court in the case of National Rayon Corporation Ltd vs. G.R.Bahmani, Income Tax Officer, Companies Circle I (3), Bombay (1965) 56 ITR 114 (Bom) and Delhi High Court in the case of Vijay Gupta vs. Commissioner of Income-Tax (2016) 386 ITR 643 (Del) . It is argued that although, the judgment of the Delhi High Court deals with scope and ambit of Section 264 of the Act, it is based on the fundamental principle that a person cannot be subjected to double taxation or imposition of tax beyond authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or deemed intimation under sub-section (1) of section 143; (c) amend any intimation under sub-section (1) of section 200A; (d) amend any intimation under sub-section (1) of section 206CB. 10. The Madras High Court in the case of Commissioner of Income-Tax, Madras-1 vs. Madhurai Knitting Company (1976) 104 ITR 36 , held that Section 35 of the Income Tax Act, 1922 and Section 154 of the Act are pari materia. 11. The Bombay High Court in National Rayon Corporation Ltd (cited 1st supra) at para No.8 opined as follows: 8. The ratio decidendi of these authorities, in our opinion, is that the jurisdiction of the Income-tax Officer to make an order of rectification under Section 35 of the Act depends upon the existence of a mistake apparent from the record. That mistake need not be a clerical or arithmetical mistake. It may be a mistake of fact as well as a mistake of law. A mistake becomes a mistake apparent from the record when it is a glaring, obvious or self-evident mistake. However, it is not possible to define precisely or exhaustively what is an error apparent from the record. But it can be said with certainty that a mistake which has to be discovered by a long drawn process of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or rectification is not an arithmetic mistake. (Emphasis Supplied) 15. The opening sentence of aforesaid Clause (a) reads From the records, it is seen that the assessee has offered excess retention money in A.Y.2015-16, which was offered in subsequent years also. This sentence makes it clear like noon day that (i) the authority has perused the record and (ii) on the basis of record, he gave a finding that assessee has offered tax on excess retention money. Thus, no elaborate arguments are needed to establish the error as respondent No.2 himself found the same from the record about the payment of tax in excess on the retention money . 16. The Delhi High Court in the case of Vijay Gupta was (cited 2nd supra), although dealing with ambit and scope of Section 264 of the Act, based its findings on the principle following from Article 265 of the Constitution of India and opined that when it is not in dispute that an amount of tax is recovered beyond the entitlement, technicalities cannot create a road block for the assessee. Thus, as rightly pointed out by the learned counsel for the petitioner, the fundamental reason for interference is founded upon Article 265 of the Constitution of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Balasubramaniam, CIT (2004) 269 ITR 1 (Bom), the Bombay High Court emphasized that no estoppel can arise against the statute. Article 265 of the Constitution of India expressly lays down that taxes can only be levied or collected through the authority of law. Hence, acquiescence cannot deprive a party of rightful relief when taxes are levied or collected without legal authority. f) A similar issue was addressed by the Jammu Kashmir High Court in Smt. Sneh Lata Jain vs. CIT [2004] 192 CTR (J K) 50, wherein, a return of income was filed by an assessee without claiming exemption under Section 54F of the Act and the same was processed under Section 143(1) of the Act. Upon noticing the error, the assessee filed a revision petition under Section 264 of the Act. The Commissioner rejected the petition, contending that since a return filed under Section 139(1) of the Act was accepted, revisional powers couldn't be invoked for claims not made in the return. The assessee then filed a writ petition challenging the order of the Commissioner. It was thereby held by the High Court as under: Though the assessing authority was not aware of the purchase of the property by the petitioner and proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , wherein at para No.8, it is held as follows: 8. That apart, we may also usefully refer to the decisions of this Court reported in (1977) 2 SCC 724 (State of Uttar Pradesh v. Indian Hume Pipe Co. Ltd.) and (2000) 10 SCC 482 (Union of India v. State of Haryana). What appears on a plain reading of the former decision is that whether a certain item falls within an entry in a sales tax statute, raises a pure question of law and if investigation into facts is unnecessary, the high court could entertain a writ petition in its discretion even though the alternative remedy was not availed of; and, unless exercise of discretion is shown to be unreasonable or perverse, this Court would not interfere. In the latter decision, this Court found the issue raised by the appellant to be pristinely legal requiring determination by the high court without putting the appellant through the mill of statutory appeals in the hierarchy. What follows from the said decisions is that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the high court instead of dismissing the writ petition on the ground of an a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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