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2022 (7) TMI 1489 - AT - Income TaxRejection of application u/s 154 as alleged Long Term Capital Gain on sale of agricultural land made by the Appellant - assessee has shown LTCG on sale of agricultural land. The said agricultural land is situated outside the Municipal limit having population of less than 10,000 - as argued section 237 which prescribed that if a person satisfies AO that the amount of tax paid by him or his on behalf for treated by him or on his behalf for any assessment year, exceeding the amount which he is properly chargeable under the Act for that year, he shall be entitled to a refund of excess - HELD THAT:- We are in full agreement with the submission of Ld. AR for the assessee that as per mandate of Section 237 if the amount of tax on behalf of assessee is paid in excess of the amount, he is properly chargeable; the assessee is entitled for refund of it. Further, Article-265 of the Constitution of India also mandates that no tax can be levied or collected without authority of law. In the case in hand, we find a peculiar situation, wherein the assessee himself offered and paid the impugned tax, however on realizing his mistake, the assessee immediately filed an application for rectification u/s 154 of seeking refund of tax paid. Therefore, considering the peculiar facts of the case and various submissions of assessee and the ratio of various decisions, we treat the rectification application filed under section 154 of assessee as additional claim of the assessee and admit the same for consideration. Our view is also strengthen by the decisions Hon'ble Supreme Court in Goetez (India) Ltd. [2006 (3) TMI 75 - SUPREME COURT] while discussing the scope of power of Tribunal under section 254 clarify though the assessing officer is not empower to entertain new claim without the assessee revising the return of income, however, this restriction is not impinge on the power of Tribunal under section 254. Further in the case of CIT vs Mitesh Impex [2014 (4) TMI 484 - GUJARAT HIGH COURT], Pruthvi Broker & Shareholders Pvt. Ltd. [2012 (7) TMI 158 - BOMBAY HIGH COURT],CIT Vs Sam Global Securities Ltd. [2013 (9) TMI 876 - DELHI HIGH COURT] wherein it was held that Ld. CIT(A) as well as Tribunal have jurisdiction to consider additional claim. It was also held that such claims need not be those which became available on account of change of circumstances of law but which were even available when return of income was filed. (emphasis added by us). As we have admitted such claim, thus, the issue is restore back to the file of assessing officer to adjudicate the same in accordance with law. The Assessing Officer to examine the fact that whether the LTCG earned on sale of such agricultural land, is exempt or not as the assessee claimed that the agriculture land sold by the assessee does not fall within the definition of asset as define section 2(14) of the Act. Appeal of the assessee is allowed for statistical purposes.
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