TMI Blog2021 (11) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of exercising power under the Act is only intended to collect correct and just tax under the provisions of the Income Tax Act, 1961 from an assessee. The Act is not intended either to collect or retain any amount which is not due from an assessee. In this connection, a reference may be made to the decision of the Hon'ble Supreme Court in Unichem Laboratories Ltd vs. Collector of Central Excise, Bombay [ 2002 (9) TMI 110 - SUPREME COURT] wherein the Hon'ble Supreme Court held that it is no part of duty of the department to levy and collect tax which is not due to the department. As the department has also not disputed the fact that the petitioner has settled the dispute under the Vivad se Vishwas scheme for the assessment year 2011-12 as a consequence of which the tax offered and paid by the petitioner during the assessment year 2014-15 had become excess. That apart, under Section 237 under Chapter XIX of the Income Tax Act, there is no limitation prescribed for granting refund of the amount paid in excess as tax. Therefore, I do not find any merits in the submissions made by the learned Senior Standing Counsel appearing on behalf of the respondents. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2021. The petitioner also remitted a sum of ₹ 1,02,89,121/- on 05.03.2021. 6. The case of the petitioner in W.P. No. 15763 of 2021 is identical. Here also, the petitioner was held liable to advance received by it during Assessment Year 2011-12 by Assessment Order dated 31.03.2016. The petitioner had successfully appealed before the CIT (Appeals) who by order dated 23.02.2018 allowed the appeal of the petitioner. The further appeal before the ITAT by the department was also dismissed on 03.12.2018. Aggrieved by the same, the Department had filed T.C.A. No. 503 of 2019. 7. Under these circumstances, the petitioner sent a representation dated 30.11.2020 and 05.03.2021 to rectify the protective demand made for the Assessment Year 2014-15 and to refund a sum of ₹ 79,62,787/- + interest of ₹ 15,57,673/- under Section 244A of the Income Tax Act, 1961. 8. Meanwhile, for the Assessment Year 2014-15 [previous year 2013-14], same income was also offered to tax by the petitioner and a protective assessment was made by the respondent under Section 143-A of the Income Tax Act, 1961. Since the petitioner's case was settled on the aforesaid provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of another assessee. 11. The learned Senior Counsel for the petitioner further submits that despite the order passed under Section 154 of Income Tax Act, 1961 for the assessment year 2014-15, the respondents are refusing to refund the amount of ₹ 95,20,460/- and therefore, submits that the writ petition deserves to be allowed. 12. The learned Senior Counsel for the petitioner has also drawn the attention to Circular No.71 dated 20.12.1971 issued by the Central Board of Direct Taxes under Section 119(2)(b) of the Income Tax Act, 1961. The learned Senior Counsel would further submit that the hardship faced by the assessees on the ground of split implementation of the provisions of Income Tax was considered and it was clarified as under: In our opinion, no question of law, much less a substantial question of law, arises in these appeals. It is a settled principle that one particular income cannot be taxed in the hands of different assessees. In the instant case, as the income has been substantively assessed in the hands of the main trust, the same income cannot be again assessed in the hands of the beneficiary trusts. For the sake of abundant caution, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Special Bench of the Tribunal which decision has been now affirmed by the Hon'ble Division Bench of Gujarat High Court in Commissioner of Income Tax v. Hirenbhai K. Patel reported in 2014 SCC OnLine Guj 15765 referred supra. 16. Supporting the impugned order and opposing these Writ Petitions, the learned Senior Standing Counsel for the respondents submits that the first respondent was incompetent to revise the assessment made on 31.03.2016 under Section 154 of the Income Tax Act, 1961. It is submitted further that the said exercise carried out by the respondent was contrary to the decision of the Hon'ble Supreme Court made in the case of Goetze (India) Ltd., vs. Commissioner of Income Tax reported in (2006) 204 CTR SC 182. 17. The learned Senior Standing Counsel for the respondents further submits that the Department is also in the process of passing appropriate orders under Section 263 of the Income Tax Act against the order passed by the first respondent under Section 154 of the Income Tax Act and therefore, submits that the relief sought for by the petitioner cannot be entertained. 18. The learned Senior Standing Counsel for the respondents furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the learned Senior Standing Counsel appearing on behalf of the respondents. Perused the orders passed under Section 154 of the Income Tax Act on 08.03.2021 for the assessment year 2014-15 and the settlement of case under the Vivad se Vishwas scheme under VSV Act, 2020 for the Assessment Year 2011-12. 24. There is no dispute that the petitioner has paid the tax for the relevant assessment year viz., 2011-12 and therefore, the protective assessment for the year 2014-15 results in excess payment of tax. The petitioner cannot be taxed twice on the same income. Ultimately, the purpose of exercising power under the Act is only intended to collect correct and just tax under the provisions of the Income Tax Act, 1961 from an assessee. The Act is not intended either to collect or retain any amount which is not due from an assessee. 25. In this connection, a reference may be made to the decision of the Hon'ble Supreme Court in Unichem Laboratories Ltd vs. Collector of Central Excise, Bombay reported in (2002) 7 SCC 145 wherein the Hon'ble Supreme Court held that it is no part of duty of the department to levy and collect tax which is not due to the department. Relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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