TMI Blog2018 (1) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... o tax shall be levied or collected except by authority of law. In the instant case, the petitioner has not filed a revised return when he was made to understand that he has no liability to pay tax on the capital gains resulting from the acquisition of land. The reason is obvious that the time prescribed under the Act for submission of revised return had expired by that time. The case of the petitioner, in the circumstances, is only that he shall not be penalised for having paid tax in terms of his return, on account of ignorance, on an income not exigible to tax. No hesitation to hold that Ext.P12 order, which is impugned in the writ petition, is a clear case where the first respondent has penalised the petitioner for having paid tax on an income which is not exigible to tax. The said order, in the circumstances, is liable to be interfered with. - Decided in favour of assessee - W.P.(c) No.26004 of 2017 - - - Dated:- 4-1-2018 - MR. P. B. SURESH KUMAR, J. For The Petitioner : Sri. Harisankar V. Menon And Smt.Meera V.Menon For The Respondents : Sri. P. K. R. Menon, SR. Counsel, GOI(TAXES), sri. Jose joseph, SC, for income tax And Government Pleader Sri. V. K. Shamsud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings under Section 143 the Act. The said writ petition was admitted on 24.07.2017. This Court also passed an interim order in the said case on 24.07.2017 restraining the first respondent from continuing the proceedings. 3. While so, the petitioner was served with Ext.P12 order dated 14.07.2017, by which the first respondent has completed the proceedings initiated in terms of Ext.P3 notice raising a demand for ₹ 9,95,070/- on the basis that the cost indexation of the land made by the petitioner cannot be accepted and that the fair market value of the land as on 01.04.1981 can be reckoned only at ₹ 1,400/- per cent for the purpose of cost indexation. According to the petitioner, after Ext.P6 notice, the first respondent had issued Ext.P11 notice also to the petitioner directing him to appear before him on 20.07.2017 for the hearing proposed in furtherance to Ext.P3 notice. The case of the petitioner is that in the light of Ext.P11 notice, Ext.P12 order dated 14.07.2017 can only be a pre-dated one issued maliciously with a view to defeat W.P.(C).No.23113 of 2017 instituted by the petitioner before this Court. It is also the case of the petitioner that at any rate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even while the petitioner has an alternative remedy by way of appeal against the same, I am of the view that it may not be appropriate now to relegate the petitioner to avail the alternative remedy available to him against Ext.P12 order. In the circumstances, I propose to examine the correctness of Ext.P12 order in this proceedings itself. 8. As noted above, the impugned order is challenged on the ground that the proceedings under Section 143(2) of the Act, which culminated in Ext.P12 order, is without jurisdiction, in the light of Section 96 of the Land Acquisition Act. 9. The learned Standing Counsel for the first respondent does not dispute the fact that in the light of Section 96 of the Land Acquisition Act, no tax is leviable on the capital gains resulting from the acquisition of land under the said statute. The learned Standing Counsel also does not dispute the fact that the only point on which Ext.P12 order has been issued is that the fair market value of the land as on 01.04.1981 adopted by the petitioner for cost indexation cannot be accepted. Nevertheless, it was contended by the learned Standing Counsel that in so far as the petitioner has disclosed the capital ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution that no tax shall be levied or collected except by authority of law. I am fortified in the aforesaid view by the observations made by the Apex Court in Commissioner of Income Tax, Bhopal v. Shelly Products and another [(2003) 5 SCC 461]. Paragraph 36 of the judgment of the Apex Court in the said case reads thus: 36. We cannot lose sight of the fact that the failure or inability of the Revenue to frame a fresh assessment should not place the assessee in a more disadvantageous position than in what he would have been if a fresh assessment was made. In a case where an assessee chooses to deposit by way of abundant caution advance tax or self-assessment tax which is in excess of his liability on the basis of return furnished or there is any arithmetical error or inaccuracy, it is open to him to claim refund of the excess tax paid in the course of assessment proceeding. He can certainly make such a claim also before the authority concerned calculating the refund. Similarly, if he has by mistake or inadvertence or on account of ignorance, included in his income any amount which is exempted from payment of income tax, or is not income within the contemplation of law, he m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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