KAMLESHBHAI RAMANLAL NAIK,SURAT vs. ITO, WARD 2(3)(1), SURAT

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ITA 524/SRT/2025Status: DisposedITAT Surat23 July 2026AY 2013-146 pages
AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that there cannot be double taxation on the same sale of land for two different assessment years. The assessee cannot be denied the refund of taxes paid for AY 2013-14 on technical grounds, especially when the capital gains were settled under the Vivad se Vishwas Scheme for AY 2012-13.

What were the facts?

The assessee sold land and declared long-term capital gains for AY 2013-14, paying tax. Subsequently, the same capital gains were taxed for AY 2012-13 under the Vivad se Vishwas Scheme, leading to a refund of NIL for that year. The assessee sought a refund of the tax paid for AY 2013-14, claiming double taxation.

What were the issues?

Whether the assessee is entitled to a refund of tax paid for AY 2013-14 when the same capital gains were settled under the Vivad se Vishwas Scheme for AY 2012-13, leading to a claim of double taxation.

Which sections of the Income-tax Act were involved?

Section 154,Section 143(3),Section 147

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, SURAT BENCH, SURAT

Before: Shri T.R. Sentil Kumar & Shri Ratnesh Nandan Sahay

IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT (PHYSICAL HEARING) Before: Shri T.R. Sentil Kumar, Judicial Member And Shri Ratnesh Nandan Sahay, Accountant Member

ITA No: 524/SRT/2025 Assessment Year: 2013-14

Kamleshbhai Ramanlal Naik Income Tax Officer Dabhi Falia, Mota, Ward-2(3)(1), Varachha, Surat Vs Surat -395006 PAN: AMXPN9888J (Appellant) (Respondent)

Assessee Represented: Shri Manish J Shah, A.R. Revenue Represented: Ms. Neerja Sharma, Sr. D.R. Date of hearing : 07-05-2026 Date of pronouncement : 23-07-2026 आदेश/ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:-

This appeal is filed by the assessee as against the appellate order dated 20.03.2025 passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, (in short referred to as “CIT(A)”), arising out of the rectification order passed under section 154 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) relating to the Assessment Year 2013-14.

2.

Brief facts of the case are, the assessee is an individual and agriculture by profession. The assessee never filed his return of

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income. The assessee along with three co-owners sold land at R.S. NO. 256+257, Block No. 256, T.P. No. 24, at Mota Varachha, Surat for a consideration of Rs.4,32,00,000/-. Assessee’s share in the land was 25% and accordingly, his share in total sale consideration was Rs.1,08,00,000/-. Sale deed of the land executed on 13/05/2011 i.e. Financial Year 2011-12. However, majority of the payments cleared in the Financial Year 2012-13, since there were dishonor of cheques given by the Purchaser. Therefore, the assessee was advised to file the Return of Income for the A.Y 2012-13 showing the savings bank interest amount and agricultural income. The assessee also filed return of income for the A.Y 2013-14 declaring total income of Rs.41,79,804/-, wherein long term capital gain on sale of land of Rs. 41,01,804/- and an agriculture income was of Rs. 78,000/- for rate purpose and paid tax of Rs.13,02,180/-.

2.1 The assessment for the A.Ys. 2012-13 and 2013-14 were reopened and reassessment order u/s 143(3) r.w.s 147 of the Act made for the A.Y 2012-13 and assessed income of Rs. 94,52,502/-. The assessee filed appeal against the reassessment order. During the pendency of the appeal before ld. CIT(A), the assessee filed application under Direct Tax VSVS Scheme and paid the full tax of Rs. 14,29,371/- for the A.Y 2012-13. The assessee did not get credit of Rs. 13,02,180/- paid for the A.Y 2013-14, therefore, assessee filed rectification application, which was rejected by the Assessing Officer vide order dated 29.04.2022, on the ground that the return filed by the assessee is belated and non-est in law.

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3.

Aggrieved against the rectification order, the assessee filed appeal before ld. CIT(A) who has also dismissed the appeal by observing as follows:- “5.0 DECISION: 5.1 I have perused the statement of facts furnished by the appellant, the order u/s 154 passed by the AO and the facts emanating from the record. It is an undisputed fact that as per the mis-guidance of the authorised representative, the appellant paid taxes on Capital Gains in AY 2012-13 and 2013-14 twice. Though the assessment has reached finality for AY 2012-13, the same could not be a reason for issue of refund during Asst Year 2013-14. The appellant filed a separate return declaring income for the Asst Year 2013-14 which stands good in the eyes of law. The AO has correctly dismissed the claim of the appellant u/s 154 since, there is no cause of action giving way for issue of refund during the Asst Year 2013-14. Simple, mistake of mentioning the Asst Year 2013-14 could have been rectified by the appellant by modifying the challan through bank authorities. Whereas, in the present case, the appellant has declared income in Asst Year 2013-14 and paid taxes thereon and now claims that because of action/addition of same amount in AY 2012-13 which has reached finality through Vivad se Viswas Scheme, the payment of taxes made in AY 2013-14 requires to be refunded to him ignoring the fact that a valid return and income which was filed by him for AY 2013-14 stands in his way. 5.2 In view of the above discussion, I am of the considered opinion that there is no infirmity in the order of the AO rejecting the claim of the appellant through 154 in the absence of any order requiring rectification vis a vis decision/adjudication required to be rendered by the undersigned. The grounds of appeal raised by the appellant stands dismissed. 6.0 In the result, the appeal is dismissed.”

4.

Aggrieved against the appellate order, the assessee is in appeal before us, raising the following grounds of appeal as under:-

1.

The learned CIT(Appeals) order is contradictory to law and facts of the case and therefore, the rectification application u/s.154 of the Act. rejected by the Assessing Officer as well as confirmed by CIT (A) for the refund of Rs. 13,02,180/- for the Asst. Year 2013-14, as tax paid for Long Term Capital Gain twice on sale of land in two different assessment years. 2. The learned CIT Appeals did not consider the facts that the appellant paid tax under VSVS as per assessment made u/s.143(3) r.w.s. 147 of the Act. for the Asst. Year 2012-13 on sale of land, but did not agree for the refund for the

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Asst. Year 2013-14, where tax paid of Rs. 13,02,180/- by the appellant for capital gain on sale of same land. 3. The AO and learned CIT Appeals rejected appellant's claim for issuance of tax refund, which paid twice in two different assessment years and passed order without any conclusive reasons or evidences to support his views while passing the order. 4. In view of all these and other grounds which may be produced during the hearing of appeal, the appeal may please be allowed and justice rendered. 5. The appellant craves leave to add, to alter, amend, modify, substitute, delete and/or rescind all or any of the grounds of appeal on or before the final hearing, if necessity so arises.

5.

We have heard rival submissions and perused the materials available on record and given careful consideration, including the paper book filed by the assessee which contains the assessment order for A.Y 2012-13 vide order dated 23.03.2016 determining the long term capital gain on sale of land of Rs. 99,44,902/-. The assessee also placed on record Form No. 5 filed under Direct Tax Vivad se Vishwas Scheme issued by Principle Commissioner of Income Tax, 01, Surat vide order dated 19.01.2022 (which is available page 22 of the paper book). The Assessing Officer also given effect vide order dated 15.09.2023 as follows:- “In this case, the assessee had opted for DTVSV Scheme-2020 and filed Form No.1& 2 under the DTVSV, Act-2020. Accordingly Pr. CIT-1, Surat has issued Form No.3 on 28.01.2021 determining amount payable of Rs. 1429371/-. Subsequently, the assessee has filed Form No.4 after payment of Rs. 1429371/-vide BSR codes 6910251 Challan No 00007 date 31-Aug-2021. Thereafter, Form-5, has been issued by the Pr. CIT-1, Surat on 19.01.20233. The computation is as under: Total disputed tax arrear on disputed income: Rs. 3661698/- 1. Amount payable under DTVSV: Rs. 1910136/- 2. Tax already Paid by the assessee: Rs. 480765/- 3. Amount payable as per Form-3 issued Rs. 1429371/-

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4.

Amount paid before filing Form-4 Rs. 1429371/- 5. Demand/Refund: Rs. NIL/- Reduce demand/issue refund as per VsVs Act-2020. 6. Thus, long term capital gain is assessed to tax for A.Y. 2012-13, which was disputed by the assessee and settled the same under Direct Tax Vivad se Vishwas Scheme paid the appropriate tax of Rs. 14,29,371/-. In the mean time, the assessee filed rectification application dated 04.02.2022 for A.Y 2013-14 to refund the tax paid on the very same long term capital gain. It is to be noted A.Y 2013-14 was also reopened u/s 147 of the Act and return was treated as non-est and no order of reassessment passed for the A.Y 2013-14. It is for this reason the rectification application is also rejected by the Assessing Officer.

6.1 It is undisputed fact the assessee filed return of income for A.Y 2012-13 without declaring the long term capital gain, since, the sale consideration was not received by the assessee and the cheques given by the purchaser were dishonoured. However, Assessing Officer made computation of LTCG for A.Y. 2012-13 and demand tax thereon which is settled during the pendency of appeal before ld. CIT(A) under Direct Tax Vivad se Vishwas Scheme. There cannot be any double taxation on the same sale of land for two different assessment years. Article 265 of the Constitution of India mandates that no tax shall be levied or collected except with the authority of law. Thus, the assessee cannot be denied the taxes paid for the A.Y. 2013-14 on technical ground, especially, when the assessee paid long term capital gain in the A.Y. 2012-13 by availing Direct Tax Vivad se Vishwas Scheme. We therefore direct

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the Jurisdictional Assessing Officer to issue refund for the A.Y 2013-14 by giving opportunity of hearing to the assessee. Thus, the Grounds raised by the assessee are hereby allowed for statistical purposes.

7.

In the result, the appeal filed by the assessee is allowed for statistical purposes.

Order is pronounced under provision of Rule 34 of ITAT Rules, 1963 on 23-07-2026

Sd/- Sd/- (RATNESH NANDAN SAHAY) (T.R. SENTHIL KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat: Dated 23/07/2026 *Ganesh Kumar, Sr. PS आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Surat 6. Guard file. By order/आदेश से,

उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, सूरत

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