TMI Blog2019 (3) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... er to submit a form under Section 10-E of the Act and also sought for and received information from the Bank regarding the salary paid towards subsistence allowance pursuant to the orders passed by this Court and that it was on the basis of the aforesaid information and the document filed by the petitioner that benefit under Section 89(1) was given to the petitioner. As constrained to observe that the submissions made by the learned counsel for the respondents to the effect that the relief under Section 89(1) of the Act was barred by limitation and, therefore, could not have been allowed by the ITO, Jabalpur vide order dated 15.12.2014, does not find any mention in the particulars of the mistake that were proposed to be rectified in the notice dated 09.05.2017 and is apparently an afterthought. Income Tax authorities while passing the order dated 1.8.2017, Annexure R-6, has totally ignored and omitted to take note of the findings recorded by the Income Tax Officer in its order dated 30.8.2011 to the effect that the relief under section 89(1) of the Act, is allowable to the petitioner and for which purpose he could have filed a revised application under section 154 of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax by filing a writ petition or by approaching the income tax authorities for refund. The subsistence allowance was ₹ 20,90,354.96 for the aforesaid period which had been paid to the petitioner by the Bank on 23.3.2009 after deducting a sum of ₹ 5,25,000/- towards income tax. 3 . Pursuant to the order passed by this Court, the petitioner approached the Income Tax authorities for refund of the Tax deducted from the subsistence allowance. The petitioner filed an application on 4.6.2010 before the authority concerned for refund of the tax deducted by the authorities on the ground that the amount paid to the petitioner was a debt accruing on account of the judgment of the Court and was not taxable, but the application was rejected by the authorities as it was stated that the petitioner had not filed any return and, accordingly, the petitioner was advised to do so by the income tax authorities. 4 . On the advise of the income tax authorities, the petitioner filed a return on 27.10.2010. The prayer for refunding the amount deducted by treating it as nontaxable on the ground that it was a judgment debt, was not accepted by the authorities and an order of assessment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal notice to them on 19.4.2017. The petitioner was thereafter served with the impugned notice under section 154/155 of the Act, dated 9.5.2017. 7 . The particular mistakes proposed to be rectified, as mentioned in the impugned notice, is as under:- Particulars of the mistake proposed to be rectified:- On verification of the record, it is found that you have not shown any income in your return of income filed for A.Y. 2009010 and also not claimed any relief u/s 89(1) in your return of income, so it can not be allowed u/s 154, as there is no mistake apparent from the record. Thus, the order u/s 154 passed on 5.12.2014 needs to be rectified by withdrawing relief of ₹ 2,81,797/- allowed u/s 89(1) and to revise the total income from ₹ 20,87,090/- to Rs.NIL as shown by you in the original return of income. 8 . The petitioner, being aggrieved by the notice has filed the present petition and this Court by order dated 22.8.2017 directed the parties to maintain status quo. 9 . It is pertinent to note that the counsel for the Revenue accepted notice on that date and sought time to seek instructions. The petition was thereafter listed on 11.9.2017 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded by the Income Tax Officer to the effect that the relief under Section 89(1) of the Act, was allowable for which the petitioner can file a revised application under Section 154 alongwith a revised computation. It is further submitted that when the petitioner filed such an application, he was asked to submit Form 10(E) giving details of his income and a report in that regard was also called from the Bank authorities and thereafter the petitioner's claim under Section 89(1) of the Act, was allowed by order dated 5.12.2014. 14. It is submitted that in such circumstances, it is not in dispute that the petitioner is entitled to refund of ₹ 2,81,797/- from the amount of ₹ 5,25,000/- deducted by the Bank towards Income Tax from the total amount of subsistence allowance disbursed to the petitioner of ₹ 20,90,355/-. It is submitted that in such circumstances, the impugned notice dated 9.5.2017 seeking to rectify some imaginary mistake in the order dated 5.12.2014 on the ground that he had not shown any income in his return for the year 2009-2010 and had initially not claimed relief under Section 89(1) of the Act, is itself misconceived as there is no mista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... berated passed the back dated order of 1.8.2017 to overcome the interim orders passed by this Court. In such circumstances, the petitioner submits that even if the order under Section 154 of the Act, has been passed by the authorities on 1.8.2017, the same is not binding on the petitioner as the same is in contravention to the interim orders passed by this Court and has been passed without giving any opportunity of hearing or notice to the petitioner. 19 . The learned counsel for the respondents per contra submits that the petitioner had filed a return without claiming any relief under Section 89(1) of the Act., and the only prayer made therein was refund of the tax deducted. It is submitted that as no relief under section 89(1) of the Act, was ever claimed by the petitioner, therefore, the same could not have been allowed by the Income Tax Officer in proceedings under section 154 of the Act, by the impugned order dated 5.12.2014. It is submitted that when the aforesaid aspect came to the notice of the JCIT, Range-I, Jabalpur, he issued a letter on 9.1.2015 to the Income Tax Officer, Jabalpur, pointing out several aspects of the matter on the basis of which the impugned notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the benefit under Section 89(1) of the Act is an undenied and undisputed fact. It is also clear from a perusal of the order dated 30.08.2011 passed by the Income Tax Officer in the previous application filed by the petitioner under Section 154 of the Act, that the Income Tax Officer in no uncertain terms has held that the relief under Section 89(1) of the Act is allowable to the petitioner for which he can file a revised application while rejecting the application filed by the petitioner under Section 154 of the Act. 24 . It is also an admitted and undisputed fact that this order of the Income Tax Officer has been affirmed in appeal by the CITA by order dated 01.10.2012. It is apparent from a perusal of the aforesaid orders that the Income Tax Officer as well as the CITA while rejecting the applications filed by the petitioner under Section 154 of the Act on 30.08.2011 and 01.10.2012 respectively have categorically held that the relief under Section 89(1) of the Act is allowable to the petitioner and that these orders have neither been set aside or withdrawn and exists as they are and have attained finality. It is also apparent that the subsequent order dated 05.12.2014 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions made by the learned counsel for the respondents to the effect that the relief under Section 89(1) of the Act was barred by limitation and, therefore, could not have been allowed by the Income Tax Officer, Jabalpur vide order dated 15.12.2014, does not find any mention in the particulars of the mistake that were proposed to be rectified in the notice dated 09.05.2017 and is apparently an afterthought. 29 . Quite apart from the above, it is also an undisputed fact that the order of status quo was passed by this Court on 22.08.2017 and that the respondents authorities in the return have filed order dated 01.08.2017 passed by the authorities under Section 154 of the Act pursuant to the notice issued to the petitioner on 09.05.2017, but the said order was sent on the address of the Mishra Transport Service, Sihora, Jabalpur and was never communicated to the petitioner and that the petitioner came to know about the same only when the return was filed by the respondents. It is also evident from a perusal of the order dated 01.08.2017 that the said order does not make any mention of the impugned notice dated 09.05.2017 and in fact the only notice mentioned therein is notice da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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