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2020 (11) TMI 275 - HC - Income TaxRefund the tax paid on admitted income - writ petitioner filed admitting the income towards capital gains - ITAT quashed the addition u/s 45(5)(b) and held that the transfer, as contemplated in Section 2(47) had happened in the year 1993-1994 and not in Assessment years 2000-2001 or 2002-2003 - as argued capital gains were assessable only in the relevant year 1993-1994 and not in 2001-2002 or 2002-2003 and hence, voluntary admission made by the assessee on wrong advice, shall be ignored - Miscellaneous Petition for clarification with regard to the retention of the capital gains wrongly admitted by the petitioner on the ground that voluntary admission is no ground to assess the same, as there is no estoppel in law HELD THAT:- Assessee paid the tax which is admittedly payable. Even the assessment order is set aside, it will not have any impact on the self assessment made by the assessee. The Income Tax Appellate Tribunal has considered the addition of income under Section 45(5)(b) of the Act as incorrect and nullified it. But, the assessment order on the admitted income was not nullified. Only because, there is an observation that the relevant year of assessment is 1993-1994 in view of Section 53-A of Transfer of Property Act, it will not confer any legal right on the assessee to claim refund. Admittedly, the income is assessable to tax and it was not assessed due to the statement made by the assessee that the transfer was not complete in terms of the sale agreement. The assessee cannot blow hot and cold or approbate and reprobate that what is not paid on due date cannot be assessed at all. It is true to state that there is no estoppel against law. The chargeability is dependent on the charging section. It is not in dispute that the income of the petitioner is chargeable to tax. In other words, the assessment authority has not assessed the income which is not assessable to tax. Hence, the claim for refund of tax paid on admitted income is not sustainable. When the assessment order, which accepts the tax liability as proposed by the assessee, is intact, the consequential order refusing to rectify the defects in filing the returns on wrong advice cannot be sustained. As mandated by law, the assessee filed a self assessment and paid the tax on income assessable to tax along with interest for delayed payment, which is in conformity with the legal provision of Income Tax Act, 1961. If at all, the petitioner is aggrieved, she should have filed an appeal against the assessment order dated 25.02.2011. Apart from this, the order impugned has been passed in terms of the Office Memorandum issued in cases of claim for refund and following the ratio laid down by the Hon'ble Supreme Court in Shelly Products case [2003 (5) TMI 4 - SUPREME COURT] This Court is of the opinion that tax avoidance of the income chargeable to tax is not permissible under law
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