TaxTMI 
TaxTMI 
2019 (3) TMI 143
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....of the petitioner's writ appeal whereby the order passed by the learned Single Judge, setting aside the termination and remanding the matter, was set aside, this Court in M.C.C No.960/2007 dated 4.7.2008 held that the petitioner should be treated as an employee under suspension from 1.3.1996 to 16.4.2007 and be paid subsistence allowance for the said period. As the amount of subsistence allowance was not paid to the petitioner, he filed a Contempt Petition which was registered as C.P No.1003/2008 and was ultimately disposed of on 18.2.2010 on a statement being made by the Bank that the subsistence allowance had been paid to the petitioner, at the same time granting liberty to the petitioner to assail the deduction made by the Bank towards income tax by filing a writ petition or by approaching the income tax authorities for refund. The subsistence allowance was Rs. 20,90,354.96 for the aforesaid period which had been paid to the petitioner by the Bank on 23.3.2009 after deducting a sum of Rs. 5,25,000/- towards income tax. 3. Pursuant to the order passed by this Court, the petitioner approached the Income Tax authorities for refund of the Tax deducted from the subsistence allowance....
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....llowed by the Income Tax Officer, Jabalpur by order dated 5.12.2014 taking into consideration the observations and the opinion expressed by the Income Tax Officer in his order dated 30.8.2011 to the effect that the petitioner was entitled to relief under section 89(1) of the Act, which was allowable and which observation was affirmed by the Commissioner of Income Tax (Appeals). 6. Inspite of the aforesaid order of 5.12.2014 holding that the petitioner was entitled to the benefit of Section 89(1) of the Act, on the salary income of Rs. 20,90,355/- i.e., the subsistence allowance paid to the petitioner, as the amount was not paid to the petitioner, he approached the authorities by filing representations and gave a legal notice to them on 19.4.2017. The petitioner was thereafter served with the impugned notice under section 154/155 of the Act, dated 9.5.2017. 7. The particular mistakes proposed to be rectified, as mentioned in the impugned notice, is as under:- "Particulars of the mistake proposed to be rectified:- On verification of the record, it is found that you have not shown any income in your return of income filed for A.Y. 2009010 and also not claimed any relief u/s 89(1....
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....e Tax Act, filed a return on the instructions of the Income Tax authorities themselves but his claim for refund was again rejected. It is submitted that subsequently, when the petitioner again filed an application for rectification, the same was dismissed on 30.8.2011 but while doing so, it was held that the petitioner's claim under Section 89(1) of the Act. is allowable and after holding so, the petitioner was advised to file a revised application under Section 154 of the Act. 13. Though the petitioner assailed the aforesaid order before the CIT Appeals, the order dated 30.8.2011 was affirmed by the CIT Appeals by order dated 1.10.2012 affirming the findings recorded by the Income Tax Officer to the effect that the relief under Section 89(1) of the Act, was allowable for which the petitioner can file a revised application under Section 154 alongwith a revised computation. It is further submitted that when the petitioner filed such an application, he was asked to submit Form 10(E) giving details of his income and a report in that regard was also called from the Bank authorities and thereafter the petitioner's claim under Section 89(1) of the Act, was allowed by order dated....
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....nything about the impugned notice dated 9.5.2017 or the response submitted by the petitioner on 17.5.2017 and has passed the order without considering the same in violation of the interim directions issued by this Court. 18. It is submitted that in the said order the authorities have also mentioned that another notice was issued to the petitioner on 30.6.2017 for hearing on 7.7.2017 but the petitioner did not appear and, therefore, the order was passed but no such notice has been placed on record. The petitioner submits that in view of the aforesaid facts and circumstances, it is apparent that the respondent authorities have deliberated passed the back dated order of 1.8.2017 to overcome the interim orders passed by this Court. In such circumstances, the petitioner submits that even if the order under Section 154 of the Act, has been passed by the authorities on 1.8.2017, the same is not binding on the petitioner as the same is in contravention to the interim orders passed by this Court and has been passed without giving any opportunity of hearing or notice to the petitioner. 19. The learned counsel for the respondents per contra submits that the petitioner had filed a return wi....
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....ke of law which needed rectification and, therefore, the impugned notice has rightly been issued to the petitioner. The learned counsel for the respondents has relied upon the decisions rendered in the cases of Goetze (India) Ltd. vs. Commissioner of Income Tax, (2006) 284 ITR 0323; Hind Wire Industries Ltd. vs. Commissioner of Income Tax, (1995) 212 ITR 0639 and Orissa Rural Housing Development Corporation Ltd. Assistant Commissioner of Income Tax, (2012) 343 ITR 0316. 23. Having heard the petitioner and the learned counsel for the respondents, it is observed that the fact that the petitioner is entitled to the benefit under Section 89(1) of the Act is an undenied and undisputed fact. It is also clear from a perusal of the order dated 30.08.2011 passed by the Income Tax Officer in the previous application filed by the petitioner under Section 154 of the Act, that the Income Tax Officer in no uncertain terms has held that the relief under Section 89(1) of the Act is allowable to the petitioner for which he can file a revised application while rejecting the application filed by the petitioner under Section 154 of the Act. 24. It is also an admitted and undisputed fact that this or....
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.... the fact that in the proceedings taken up by the authorities on the revised application under Section 154 of the Act, the authorities duly asked the petitioner to submit a form under Section 10-E of the Act and also sought for and received information from the Bank regarding the salary paid towards subsistence allowance pursuant to the orders passed by this Court and that it was on the basis of the aforesaid information and the document filed by the petitioner that benefit under Section 89(1) of the Act was given to the petitioner. 28. We are also constrained to observe that the submissions made by the learned counsel for the respondents to the effect that the relief under Section 89(1) of the Act was barred by limitation and, therefore, could not have been allowed by the Income Tax Officer, Jabalpur vide order dated 15.12.2014, does not find any mention in the particulars of the mistake that were proposed to be rectified in the notice dated 09.05.2017 and is apparently an afterthought. 29. Quite apart from the above, it is also an undisputed fact that the order of status quo was passed by this Court on 22.08.2017 and that the respondents authorities in the return have filed ord....