TMI Blog2011 (5) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... affection or aversion - Decided in favor of Assessee. - 2113 of 2011 - - - Dated:- 18-5-2011 - GOPALA GOWDA V., MAHAPATRA B. N. JJ. JUDGMENT B. N. Mahapatra J.- 1. The prize money of Rs. 25,00,000 (rupees twenty-five lakhs), which the petitioner-Lopamudra Misra got by exhibiting her talent in a TV game show, i.e., "Kaun Banega Crorepati" having been made taxable by the income-tax authorities, she has approached this court by means of this writ petition praying for quashing of order dated November 4, 2009 (annexure 1) and directing the Assessing Officer to refund the entire advance tax of Rs. 7,55,550 along with interest as provided under the first part of section 140 of the Income-tax Act, 1961 (for short, "the Act"). 2. Bereft of unnecessary details, the facts and circumstances giving rise to the present writ petition are that the petitioner-assessee is an individual deriving income from running a Cyber Cafe-cum-Computer Coaching Centre. She filed a return of income showing total income Rs. 16,21,630 for the assessment year 2001-02. In her return, the assessee disclosed income from household property, business and other sources. The same was processed under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the finding of the learned Commissioner of Income-tax (Appeals) that the receipt of income from the said T. V. game show by the assessee is taxable under the head "Income from other sources" as well as his direction to the Assessing Officer for making a fresh determination of quantum of income. The Income-tax Department filed two appeals before the Income-tax Appellate Tribunal, one under section 154 of the Act bearing I. T. A. No. 472/CTK/03 and another bearing I. T. A. No. 359/CTK/03. In I. T. A. No. 359/CTK/03, the Revenue questioned the order of the learned Commissioner of Income-tax (Appeals) who held that section 115BB and Explanation (ii) to section 2(24)(ix) of the Act are not applicable to the case of the assessee-petitioner. Against the said appeal, the assessee also filed cross-objection. The Income-tax Appellate Tribunal heard all these appeals along with the cross-objection and disposed of those by a common order dated August 5, 2004. By the said order, the Revenue's appeal was allowed and the assessee's appeal and the cross-objection were dismissed. 5. Against that order, the assessee filed appeal under section 260A of the Act before this court for adjudication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the advance tax without authority of law. 7. It was further argued that the Revenue has illegally collected Rs.7,55,500 as advance tax on March 30, 2001. Opposite parties Nos. 1 and 2 with a mala fide intention distorted facts and the provisions of the statute and illegally withheld the actual refund due to the assessee. After receipt of the prize money from Star Plus by the assessee, the Assessing Officer on January 16, 2001, issued a notice to the assessee for payment of advance tax of Rs. 11 lakhs under section 208 of the Act on or before March 31, 2001. The said notice was accompanied by a challan of Rs. 11 lakhs. The assessee met the Assessing Officer and informed that she is not liable to pay tax as there was no provision under the Act to treat the receipt of the prize money as income of the assessee. Thereafter, the Assistant Commissioner issued another notice on January 16, 2011, giving reference to his earlier notice dated January 16, 2001, intimating the petitioner that payment of advance tax is due on or before March 15, 2001, for the financial year 2000-01 relating to the assessment year 2001-02, any default, deferment in payment of advance tax attracts levy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, under section 143(3) of the Act rejecting the claim of the assessee-petitioner that according to the amendment in section 2(24)(ix) of the Act, the prize money received from the said TV game show was brought to the tax net only from April 1, 2002, and subsequent assessment years and hence the assessee could not be taxed for such receipt. On May 12, 2009, the authorized representative of the assessee also submitted a copy of the order dated April 30, 2009, of the Income-tax Appellate Tribunal before the Commissioner of Income-tax with a request to arrange refund of the entire amount of Rs. 7,55,550. 9. It was further submitted that though, according to the assessment order dated January 27, 2003, and order dated May 5, 2004, under section 251 of the Act, the prize money of Rs. 25 lakhs was included in the total income of the assessee, but in view of the order of the Income-tax Appellate Tribunal dated April 30, 2009 (annexure 2), the said receipt should not be included in total income. Therefore, the assessee is entitled to get refund of the total advance tax of Rs. 7,55,550 with 12 per cent. interest per annum. The assessee-petitioner filed a miscellaneous application before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to determine the income of the assessee at Rs. 16,21,630 while giving effect to the order of the Income-tax Appellate Tribunal. 13. The relief sought for by the petitioner is two-fold, i.e., (i) to quash annexure 1 by which the Assistant Commissioner of Income-tax treated the award received from the T. V. show as income taxable under the head "Income from other sources" which is contrary to the order of the Income-tax Appellate Tribunal dated April 30, 2009, and (ii) the assessee-petitioner is entitled to get refund of Rs. 7,55,500 paid as advance tax under the threat of the income-tax authorities along with interest as provided in the first part of section 240 of the Act. 14. The learned Income-tax Appellate Tribunal, vide its order dated April 30, 2009, held that the amount of award of Rs. 25 lakhs received from the said TV game show by the assessee on November 5, 2000, cannot be said to be her income, which is exigible to tax under section 115BB of the Act for the assessment year 2001-02 as the amendment to section 2(24)(ix) of the Act has come into operation from April 1, 2002. This finding of the learned Income-tax Appellate Tribunal is in terms of the judgment of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive reiterated the submission made in the miscellaneous application could not point out any mistake apparent from the record crept in the order of the learned Tribunal. In view of this, we are of the view that if the plea of the Revenue is accepted it will amounts to review of our orders. Law is well settled that we do not have such power and since the Revenue has failed to point out any mistake apparent from the record, the miscellaneous application filed by the Department deserves to be dismissed." 17. The Income-tax Department has also not challenged the above order of the learned Income-tax Appellate Tribunal dated February 11, 2010,. Thus, the order dated February 11, 2010, has also attained finality.The assessee filed a miscellaneous application in I. T. A. Nos. 08-11/CTK/2009 and the Tribunal disposed of the same on August 30, 2010, with the following observations : "Since the assessee's appeal was allowed and the Revenue's appeals were dismissed, we feel no need to further clarify our above order as the assessee will get the consequential relief in any case. The Assessing Officer is directed to pass an order giving effect to the order of the Tribunal dated April 30, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aws." 21. Therefore, while giving effect to the order of the Tribunal dated April 30, 2009, the Assistant Commissioner cannot determine the total income of the assessee at Rs. 16,21,630, in which a part of the award received from the said TV game show is included. The learned Assessing Officer while giving effect to the order of the Tribunal is expected to function within the parameters of law. As it appears, the learned Assessing Officer has exceeded his jurisdiction and power while giving effect to the order of the Tribunal which has become final. This shows utter disregard to the orders of the Tribunal, which is not expected from the Assessing Officer, who is subordinate to the Tribunal. Therefore, the order passed under annexure 1 which is impugned in this writ petition, is not only erroneous, but also error in law. It is necessary to make an observation that the impugned order under annexure 1 lacks judicial propriety. Hence, the order is liable to be quashed, which we direct. The assessee is entitled to get refund of the entire advance tax of Rs. 7,55,500 along with interest, as provided under the Act and we accordingly direct the Assistant Commissioner of Income tax, Cir ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
