9911796707
TMI Blog2023 (12) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax Act, 1961 (For short "the Act, 1961") for Assessment Year 2013-2014. 4. As the facts are similar in all these petitions, they have been heard together and are being disposed of by this common judgment and order. 5. Facts are taken from Special Civil Application No. 14075 of 2021 treating it as the lead matter for the sake of convenience. 5.1) The agricultural land of the petitioner was acquired by the State of Gujarat under "Survo Scheme" on 29.11.2001. The Land Acquisition Officer awarded compensation at the rate of Rs. 7.50 per sq. mtr. for irrigated land and Rs. 5/- per sq. mtr. for non-irrigated land. 5.2) Feeling aggrieved the petitioner and other claimants filed Land Reference Cases before the Additional Senior Civil Judge, Gondal ('Reference Court') for additional compensation. 5.3) The Reference Court vide Judgment and Order dated 13.04.2011 awarded the additional compensation at the rate of Rs. 342/- per sq. mtr. for irrigated land and Rs. 275/- per sq. mtr. for non-irrigated land. 5.4) The State of Gujarat challenged the Judgment and Award passed by the Reference Court before this court. This Court vide Judgment and Order dated 30.04.2012 directed the Irrig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d about the deduction of TDS nor issued Form No. 16A and requested to issue Form no. 16A. 5.10) The petitioner also submitted a reply on 18.11.2020 pursuant to the letter of the respondent dated 09.11.2020 for giving an opportunity to furnish the reasons and evidence for the delay in filing the application for condonation of delay. 5.11) The respondent authorities by impugned orders rejected the said application for condonation of delay. 5.12) The petitioner of Special Civil Application No. 14075/2022 has challenged the impugned order dated 05.06.2022, petitioners of Special Civil Application No. 664/2021 and Special Civil Application No. 651 of 2023 have challenged the impugned order dated 02.08.2021 being aggrieved by the orders rejecting the application to condone the delay in filing the return of income to claim the refund with interest under section 119(2)(b) and section 244A of the Act, 1961. 6. Learned advocate Mr. Tushar Sheth appearing for the petitioners submitted that in view of the decision of Hon'ble Apex Court in case of Union of India v. Hari Singh and others (Judgment dated 15.09.2017 passed in Civil Appeal No. 15041/2017), reported in (2018) 15 SCC 201 the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d persons, however, with a rider to direct the Assessing Officer to issue refund with interest on the amount of refund claim from the date of deposit by the Executive Engineer, Irrigation department till the date of granting of refund. 10. For passing such direction of issuance of the refund with interest under section 244A of the Act, similar reasons as given by this Court in case of Special Civil Application No. 12466/2021 and other allied matters are adopted and reproduced as under: "8. The Hon'ble Apex Court in case of Union of India v. Hari Singh and others (Judgment dated 15.09.2017 passed in Civil Appeal No. 15041/2017)reported in (2018) 15 SCC 201, observed as under: "2. An admitted fact which is common in all these appeals is that while disbursing the compensation, the Land Acquisition Collector had deducted the tax at source and deposited the same with the Income Tax Department. These appellants preferred the writ petition in the High Court stating that no such deduction at source was permissible in view of the provisions of Section 194-LA of the Income Tax Act, 1961, since the land which was acquired was agricultural land and this provision categorically mentions th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found that the compensation was received in respect of agricultural land, the tax deposited with the Income Tax Department shall be refunded to these respondents. 7.2 While determining as to whether the compensation paid was for agricultural land or not, the Assessing Officer(s) will keep in mind the provisions of section 28 of the Land Acquisition Act and the law laid down by this Court in Commissioner of Income Tax, Faridabad v. Ghanshyam (HUF) [2009 (8) SCC 412] in order to ascertain whether the interest given under the said provision amounts to compensation or not" 10. In view of the above decision, the Income Tax department has allowed the application made by the applicant to condone the delay in filing the return of the income to claim the refund and also issued the refund. However, the respondent did not grant any interest on the amount of refund though the delay cannot be said to be attributable to the petitioners in the facts of the case. 11. Instruction No. 7/2013 dated 15.07.2013 was issued pursuant to the directions issued by the Delhi High Court in the case of Court On its Own Motion v. Commissioner of Income Tax (supra), that in no case interest u/s 244A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... funded. There is no reason to restrict the same to an assessee only without extending the similar benefit to a resident/ deductor who has deducted tax at source and deposited the same before remitting the amount payable to a non-resident/ foreign company. 38. Providing for payment of interest in case of refund of amounts paid as tax or deemed tax or advance tax is a method now statutorily adopted by fiscal legislation to ensure that the aforesaid amount of tax which has been duly paid in prescribed time and provisions in that behalf form part of the recovery machinery provided in a taxing Statute. Refund due and payable to the assessee is debt-owed and payable by the Revenue. The Government, there being no express statutory provision for payment of interest on the refund of excess amount/tax collected by the Revenue, cannot shrug off its apparent obligation to reimburse the deductors lawful monies with the accrued interest for the period of undue retention of such monies. The State having received the money without right, and having retained and used it, is bound to make the party good, just as an individual would be under like circumstances. The obligation to refund money receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... butable to the assessee whether wholly or in part, the period of the delay so attributable only can be excluded from the period for which interest is payable under subsections (1) or (1A)or (1B) to section 244A of the Act, 1961. In the facts of the case, the words "or the deductor, as the case may be," which is inserted with effect from 01.04.2017 would not be applicable as the petitioners have been permitted to file the refund claim for the AY 2013-2014 after condonation of delay and such delay in claiming the refund cannot be said to be attributable to the petitioners as the petitioners were not made aware about the deduction of tax at source by the deductor in absence of issuance of Form No. 16-A which was mandatorily required as per Rule 31(3) of the Rules." 11. In view of the foregoing reasons, the petitions succeed and are accordingly allowed. The respondents are directed to pass the order to condone the delay in filing the return for the Assessment Year 2013-2014 and to issue the refund with interest under section 244A of the Act, 1961 from the date of deposit of the amount of TDS till date of payment of refund as per provisions of section 244A of the Act, 1961. Such exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
