2024 (5) TMI 165

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.... : 3. The admitted facts between the parties are that the petitioner filed his returns for Assessment Year 2015-16. In the said return, he has paid tax relating to 'retention money', which money was actually paid to him by the Government in the Assessment Years 2016-17, 2017-18 and 2018-19. The petitioner as an oversight again paid the tax on that 'retention money' in the Assessment Years 2016-17, 2017-18 and 2018-19. After having realised that he has paid tax twice, he preferred an application under Section 154 of the Act, for rectification of mistake before respondent No.2. The said application came to be dismissed by order dated 23.12.2021. Contention of the petitioner: 4. Criticising the impugned order, the learned counsel for the petitioner submits that Article 265 of the Constitution of India, in no uncertain terms makes it clear that tax cannot be levied or collected beyond authority of law. The law permits levy of tax once on 'retention money', which has been admittedly collected in the year 2015-16. The subsequent payment of the tax for the years 2016-17, 2017-18 and 2018-19 was inconsonance with law because the income from retention money was relating to those ye....

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....fication of mistake.- 154. Rectification of mistake.- (1) The Commissioner or Appellate Assistant Commissioner may, at any time within four years from the date of any order passed by him in appeal or, in the case of the Commissioner, in revision under section 33A and the Income-tax Officer may, at any time within four years from the date of any assessment order or refund order passed by him on his own motion rectify any mistake apparent from the record of the appeal, revision, assessment or refund as the case may be, and shall within the like period rectify any such mistake which has been brought to his notice by an assessee: (1) With a view to rectifying any mistake apparent from the record an income-tax authority referred to in section 116 may,- (a) amend any order passed by it under the provisions of this Act; (b) amend any intimation or deemed intimation under sub-section (1) of section 143; (c) amend any intimation under sub-section (1) of section 200A; (d) amend any intimation under sub-section (1) of section 206CB.   10. The Madras High Court in the case of Commissioner of Income-Tax, Madras-1 vs. Madhurai Knitting Company (1976) 104 ITR 36, h....

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....ot availed this remedy. b) The request made by the assessee for rectification is beyond the scope of passing modification order u/s. 154 of the Income Tax Act, 1961. c) In year under consideration, only intimation u/s. 143(1) is passed by CPC. No order u/s. 143(3) is passed for the said year under consideration. d) The assessee filed the return of income for A.Y.2015-16 on 30.11.2015. The Assessee had the scope for filing the return of income u/s. 139(4) of the Income Tax Act, 1961 and claimed the requisite reduction of income. e) The request made by assessee for modification u/s.154 of the Act, is not mistake apparent from record. Hence, beyond the scope of Sec. 154 of the Income Tax Act, 1961. f) Further, it is seen that the assessee had also not made any claim in this regard during the course of assessment proceedings before the Assessing Officer for A.Y. 2016-17 and 2017-18. g) The request made by the assessee for rectification is not an arithmetic mistake." (Emphasis Supplied) 15. The opening sentence of aforesaid Clause (a) reads "From the records, it is seen that the assessee has offered excess retention money....

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....ed that if an assessee, due to error, inadvertence, or because of lack of awareness, includes an amount in their income which is exempt from income tax or not considered as income under the law, they may inform the Assessing Officer. If satisfied, the Assessing officer may provide necessary relief and refund any excess tax paid. c) Similarly in CIT vs. Bharat General Reinsurance Co. Ltd. (1971) 81 ITR 303 (Delhi), the Delhi High Court opined that mere inclusion of income in a tax return for a specific year erroneously, does not grant the tax department jurisdiction to tax that income for that year if it legally does not belong to it. d) In Balmukund Acharya vs. Deputy CIT (2009) 310 ITR 310 (Bom) the Bombay High Court affirmed that tax collection must adhere strictly to the provisions of the law. If an assessee is over-assessed due to a mistake, misconception, or lack of proper guidance, authorities under the law are obligated to assist him and ensure that only due taxes are collected. e) In Nirmala L. Mehta vs. A. Balasubramaniam, CIT (2004) 269 ITR 1 (Bom), the Bombay High Court emphasized that no 'estoppel' can arise against the statute. Article 265 of the Constitution ....

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....cising the writ jurisdiction, but at the same time where the admitted facts disclosed non- exercise of jurisdiction by an adjudicatory authority and a citizen is subjected to tax not payable by him, interference by this Court is warranted. The respondent No. 2 is directed to reassess the taxable income of the petitioner, by taking into consideration the benefit available to her under Section 54F of the Income-tax Act and pass appropriate order." (Emphasis Supplied) 18. So far, the question to relegate the petitioner to avail remedy of appeal is concerned, suffice it to note that in this case, there exists no disputed question of fact. The only question that needs determination relates to interpretation and scope of Section 154 of the Act. In this backdrop, no useful purpose would be served in relegating the petitioner to avail alternative remedy of appeal. In this regard, it is apt to refer to the decision of the Hon'ble Supreme Court in the case of Godrej Sara Lee Ltd vs. Excise and Taxation Officer-cum-Assessing Authority 2023 SCC OnLine SC 95, wherein at para No.8, it is held as follows: "8. That apart, we may also usefully refer to the decisions of this Court report....