JOSE THOMAS, vs. THE COMMISSIONER OF INCOME TAX

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WP(C)/20066/2022HC KeralaKLHC01041280202221 June 2022Author: HONOURABLE MR. JUSTICE GOPINATH P.4 pages
AI SummaryRemanded

What did the High Court hold?

The High Court directed that if the petitioners file an application invoking Section 264 of the Income Tax Act, 1961, before the Jurisdictional Principal Commissioner, along with an application for condonation of delay, these applications shall be taken up, considered, and disposed of within a period of two months from the date of their filing. The petitioners were instructed to file the necessary applications within ten days from the date of receiving a certified copy of the judgment. The Court did not decide on the merits of the refund claim itself but rather on the procedural path to be followed. The principle is that procedural remedies, when invoked correctly and within stipulated timelines, should be considered by the authorities.

What were the facts?

The petitioners, Jose Thomas and Treasa Jolly, paid tax on capital gains arising from the compulsory acquisition of land under the Land Acquisition Rehabilitation and Resettlement Act, 2013. They later realized they were not liable to pay such tax. They approached the authorities through applications (Ext.P3 & P4) seeking a refund of the tax paid. The respondent department, through its Standing Counsel, suggested that the petitioners should file an application before the Commissioner of Income Tax invoking Section 264 of the Income Tax Act, 1961, along with an application for condonation of delay, for their application to be processed and considered.

What were the issues?

1. Whether the petitioners are entitled to a refund of tax paid on capital gains arising from compulsory acquisition of land under the Land Acquisition Rehabilitation and Resettlement Act, 2013. Assessee's contention: The petitioners argue that they were not required to pay tax on the capital gains as the amounts were received on account of compulsory acquisition of land under the specified Act. They have sought a refund of the tax paid. Revenue's contention: The revenue, through its Standing Counsel, contends that the petitioners must first file an appropriate application before the Commissioner of Income Tax invoking Section 264 of the Income Tax Act, 1961, along with an application for condonation of delay. Only then can the application be processed and considered.

Which sections of the Income-tax Act were involved?

Section 264

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 21ST DAY OF JUNE 2022 / 31ST JYAISHTA, 1944 WP(C) NO. 20066 OF 2022 PETITIONERS: 1 JOSE THOMAS, AGED 56 YEARS, S/O. JOSEPH EMMANUAL, CHILLIKKOTTATHIL HOUSE, PALLICHAMBAL ROAD, PALARIVATTOM, KOCHI 682 025. 2 TREASA JOLLY, AGED 73 YEARS, W/O. JOSEPH EMMANUAL, CHILLIKKOTTATHIL HOUSE, PALLICHAMBAL ROAD, PALARIVATTOM, KOCHI 682 025. BY ADVS. T.GOPALAKRISHNAN NIDHI BALACHANDRAN RESPONDENT: THE COMMISSIONER OF INCOME TAX NON-CORPORATE CIRCLE 1(1), ROOM NO. 306, 3RD FLOOR, C R BUILDING, IS PRESS ROAD, KOCHI 682 018. OTHER PRESENT: SRI. CHRISTOPHER ABARAHAM (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 20066 OF 2022 2

JUDGMENT

Petitioners have approached this Court stating that they paid certain amounts of tax on capital gains without being aware of the fact that they were not required to pay such tax as the capital gain arose out of amounts received on account of compulsory acquisition of land under the Land Acquisition Rehabilitation and Resettlement Act, 2013. It is submitted that the petitioners had approached the authorities through Ext.P3 & P4 applications for refund of the amount remitted as tax.

2.

The learned Standing Counsel appearing for the respondent department submits that the petitioners will have to file an appropriate application before the Commissioner invoking Section 264 of the Income Tax Act along with an application for condonation of delay and only in such an event, the application can be processed and considered by the Commissioner.

3.

Having heard the learned counsel for the petitioners and the learned counsel appearing for the respondent department, I am of the view that this writ petition can be disposed of directing that if the petitioners

WP(C) NO. 20066 OF 2022 3 file an application invoking Section 264 of the Income Tax Act before the Juri ictional Principal Commissioner along with an application for condonation of delay, those applications shall be taken up and considered and disposed of within a period of 2 months from the date on which such applications are filed. The petitioners shall file the necessary applications within a period of 10 days from the date of receipt of a certified copy of this judgment. This Writ Petition will stand disposed of as above. GOPINATH P. JUDGE ats

WP(C) NO. 20066 OF 2022 4

Appendix — schedule of exhibits
APPENDIX OF WP(C) 20066/2022 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE NO.A5-LAC 44/2016 DATED 21.1.2020 ISSUED BY THE SPECIAL TAHASILDAR (LA) NH NO. III, VYTTILA. EXHIBIT P2 A TRUE COPY OF THE AWARD DATED 24.08.2017 ISSUED BY THE LAND ACQUISITION OFFICER. EXHIBIT P3 TRUE COPY OF THE PETITION DATED 21.05.2019 SUBMITTED BY THE 1ST PETITIONER. EXHIBIT P4 TRUE COPY OF THE PETITION DATED 22.05.2019 SUBMITTED BY THE 2ND PETITIONER.

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