T.V.KRISHNAN vs. PR. COMMISSIONER OF INCOME TAX

The order Ext.P8 of the Principal Commissioner of Income Tax, Kozhikode passed under the provisions of Section 119(2)(b) of the Income Tax Act, 1961 condoning the delay for claiming tax refund of Rs.1,85,450/- (Rupees One lakh eighty five thousand four hundred and fifty only) i.e., the TDS deducted by the Special Tahsildar, Kasargode on account of the acquisition of agriculture land, is under challenge on behalf of the petitioner.

Petitioner, as per the averments, was not a regular assessee since his annual income was solely from agricultural activities and less than the taxable threshold. In the year 1988 the land was compulsorily acquired and the total enhanced compensation assessed was Rs.17,74,333/- (Rupees Seventeen lakh seventy four thousand three hundred and thirty three only) along with interest from 1999 to 2007 amounting to Rs.18,26,591/- (Rupees Eighteen lakh twenty six

Learned counsel appearing on behalf of the petitioner submitted that the order Ext.P8 is based upon the previous circular of 2016 whereas the circular Ext.P7 dated 09.06.2015 envisaged the situation in which the petitioner had fallen, has not been considered.

On the other hand, learned counsel for the WP(C) NO. 10405 OF 2016 -4- Income Tax submitted that the order is perfectly legal and justified. There was a misrepresentation in claiming condonation of delay by asserting the certificate of TDS was issued on 15.09.2014, but in fact it was issued on 18.07.2013. Therefore the return was beyond six years and urged this Court for dismissal of the writ petition.

I have heard learned counsel for the parties and appraised the paper book.

It would be expedient to extract the operative portion of the order Ext.P7. The same reads as follows:

On perusal of the order it is evident that no WP(C) NO. 10405 OF 2016 -6- doubt the authorities noticed that the TDS certificate issued by the Tahsildar was on 15.09.2014 and not on 18.07.2013. It is not the case that the petitioner had been regular income tax payee as his income was less than the taxable income. However for the assesssment year 2008-2009 the income was assessible to the income tax on account of the acquisition of land, as noticed above, therefore filed the return in 2014 for the assessment period 2008-2009 till the refund of Rs.1,85,450/- (Rupees One lakh eighty five thousand four hundred and fifty only) on the basis of the TDS certificate. The application was declined as per the circular of 2003, which, in my view, is not permissible and sustainable, for, as per clause 4 of the circular Ext.P7 dated 9.6.2015, while calculating the period of six years in the refund claim arriving out of the order of the Court, the period for which any such proceedings were pending before the court shall be ignored. Clause 4 of the circular reads as under:

Certificate is dated 18.07.2013. Therefore the period of six years would have been applicable from such date and could not relate back to assessment year 2008- 2009 whereby the period for filing the return had allegedly expired on 31.07.2008 . Thus the order Ext.P8 is wholly unsustainable and arbitrary and hereby set aside. Writ petition is allowed. Delay in filing the return and claiming refund is condoned. Respondents are directed to make the payment of refund in the account of the petitioner within a period of one month from the date of receipt of a certified copy of the judgment. AMIT RAWAL JUDGE vv