Dileep Shivpuri V. Union Of India, Through Secretary (Revenue), Ministry Of Finance, Government Of India and Chief Commissioner Of Income Tax, Jodhpur and Chairman, Central Board Of Direct Taxes

CW/2895/2022

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Dileep Shivpuri, the petitioner, challenged the recovery of HRA by the Income Tax Department, which he received while serving as the Chief Commissioner of Income Tax in Jodhpur from 2010 to 2012. The recovery was initiated just days before his superannuation in January 2014, amounting to Rs.3,78,181. The Central Administrative Tribunal initially dismissed his application against this recovery, a decision later upheld by the High Court of Rajasthan. The court found that the petitioner was not eligible for HRA as he occupied a government guest house, and thus, the recovery was justified.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 800632 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 04-09-2024
• Assessment Year: misc
• Other Referred Cases: Manohar Lal (Dead) by LRs Vs. Ugrasen (Dead) by LRs & Ors: (2010) 11 SCC 557, State of Punjab Vs. Rafiq Masih:(2015)AIR (SCW) 501, Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors.: (2009) AIR (SCW) 1871, Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors.: (2012) 8 SCC 417
• Laws Referred To: Office Memorandum dated 27th November, 1965
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: ANAND SHARMA
• Assessee Lawyers: DILEEP SHIVPURI
• Keywords: Government accommodation; House Rent Allowance; Judicial authority; Superannuation; Recovery of HRA
• Section: 4(b)(i); 4(b)(viii)

Judgement Text

"[2024:RJ-JP:37276-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 2895/2022 Dileep Shivpuri S/o Late Shri R.n. Shivpuri, Aged About 68 Years, Resident Of B-120, Bhabha Marg, Tilak Nagar, Jaipur 302004 ----Petitioner Versus 1. Union Of India, Through Secretary (Revenue), Ministry Of Finance, Government Of India, North Block, Central Secretariat, New Delhi 110 001. 2. Chief Commissioner Of Income Tax, Jodhpur, Aayakar Bhawan, Paota C Road, Jodhpur. 3. Chairman, Central Board Of Direct Taxes, North Block, Central Secretariat, New Delhi 110 001. ----Respondents For Petitioner(s) : Mr.Dileep Shivpuri, petitioner – present in person For Respondent(s) : Mr.Anand Sharma HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE PRAVEER BHATNAGAR Order 04/09/2024 1. The petitioner has preferred this writ petition aggrieved by by the order dated 02nd December, 2021, passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur, whereby O.A. No.288/2014, preferred by the petitioner, was dismissed. 2. The petitioner, present in person, contends that he was Chief Commissioner, Income Tax and was posted at Jodhpur from 2010 to 2012. During his posting at Jodhpur, he occupied a government guest house from Monday to Friday and paid rent. He was to superannuate on 31st January, 2014 and just prior to four days of [2024:RJ-JP:37276-DB] (2 of 7) [CW-2895/2022] his superannuation i.e. on 27th January, 2014, he received a letter with regard to recovery of House Rent Allowance (for short “HRA”). It is contended that the Department demanded Rs.3,78,181/- and the petitioner deposited the said amount under protest. 3. The petitioner, present in person, also contends that he preferred an OA against the illegal recovery of amount of Rs.3,78,181/- before the Central Administrative Tribunal (for short “the Tribunal”) and the same was dismissed vide order dated 12th November, 2014. The petitioner preferred a writ petition before the High Court and the High Court, while deciding the writ petition vide order dated 19th July, 2018, directed the Tribunal to decide the matter afresh after considering the Office Memorandum dated 27th November, 1965. 4. It is also contended that the Rule, on which, reliance was placed by the Tribunal, was Rule 4(b)(i) of Office Memorandum dated 27th November, 1965, whereas the ground, on which, recovery was made, was Rule 4(b)(viii). It is further contended that the guest house does not fall within the definition of ‘accommodation’ and the petitioner was entitled to HRA and it was wrongly recovered by the respondents. It is also contended that recovery letter was issued just prior to four days of superannuation and the same could not have been recovered. 5. The petitioner, present in person, has placed reliance on judgment passed by the Apex Court in the case of Manohar Lal (Dead) by LRs Vs. Ugrasen (Dead) by LRs & Ors: (2010) 11 SCC 557 in support of the contention that the judicial authorities cannot change the Rule on their own. With regard to [2024:RJ-JP:37276-DB] (3 of 7) [CW-2895/2022] recovery just prior to four days of superannuation, reliance has been placed on the judgment passed by the Apex Court in the case of State of Punjab Vs. Rafiq Masih:(2015)AIR (SCW) 501 as well as on the judgment in the case of Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors.:(2009) AIR (SCW) 1871. 6. It is argued by the petitioner, present in person, that once payment has been made, for which, the petitioner is not responsible, the same could not have been recovered, that too, just few days prior to superannuation. 7. Learned counsel – Mr.Anand Sharma, appearing for the respondent – Union of India, has opposed the writ petition and contends that the petitioner was Chief Commissioner, Income Tax and was aware of the provision pertaining to HRA. It is contended that HRA is subject to the conditions mentioned in Clause 4 of the Office Memorandum dated 27th November, 1965. 8. It is further argued that Clause 4(a)(i) of Office Memorandum dated 27th November, 1965 provides allowance to those government servants, who are eligible for government accommodation, only if they apply for such accommodation in accordance with the prescribed procedure, if any, but have not been provided with it. It is also argued that the petitioner never applied for government accommodation and never took any premises on rent so as to claim HRA. It is contended that Clause 4(b)(i) of Office Memorandum dated 27th November, 1965 provides that allowance shall not be admissible to those who occupy accommodation provided by the Government. It is argued that since the petitioner was occupying a guest house and the said [2024:RJ-JP:37276-DB] (4 of 7) [CW-2895/2022] accommodation was provided by the Government, the petitioner was not entitled to HRA. 9. Learned counsel for the respondents has also read over the definition of ‘rent’ provided in Office Memorandum dated 27th November, 1965. It is also contended that since the petitioner was working on the post of Chief Commissioner, Income Tax, the judgments, that have been referred by the petitioner, would have no applicability as in majority of the cases, there was wrong fixation and for that, the employee was not responsible. However, in the present case, the petitioner was knowing very well that he was not entitled for HRA, thus the same can be validly recovered. In this regard, learned counsel for the respondents has placed reliance on the judgment passed by the Apex Court in the case of Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors.: (2012) 8 SCC 417. 10. It is contended that merely because withdrawal was made under Rule 4(b)(viii) and while perusing the Office Memorandum, the Department found that HRA was recoverable under Rule 4(b) (i), no prejudice is caused to the petitioner and any amount, which has been wrongly paid to the petitioner, can be recovered by the Government. 11. We have considered the contentions. 12. The definition of ‘rent’ is provided in Office Memorandum dated 27th November, 1965, which reads as under: “’Rent’ means the charges paid by a Government servant as consideration for unfurnished accommodation occupied by him if he is a tenant, and the gross rental value of the house as assessed for municipal purposes or otherwise without deduction of the rebate of 10 per cent on account of repairs if he is [2024:RJ-JP:37276-DB] (5 of 7) [CW-2895/2022] an owner, and shall, in both cases, include municipal and other taxes, except service taxes levied separately and described as such, that are legally payable by the occupier.” 13. The Clause 4 of Office Memorandum dated 27th November, 1965 is expressively clear and on bare reading of the same, it is apparent that HRA is payable subject to conditions mentioned in Clause 4. Clause 4(a)(i) of Office Memorandum clearly provides that only those Government servants, who have applied for accommodation and have not been provided with it, are eligible for HRA. Clause 4(b)(i) of Office Memorandum further makes it clear that those, who occupied accommodation provided by the Government, would also not be eligible for allowance. 14. We are of the considered view that the accommodation, which the petitioner was occupying, was an accommodation provided by the Government, even if it was a guest house and the same belongs to the Government and was provided to the petitioner by the Government. The word ‘accommodation’ cannot be given a narrow interpretation, more particularly, when Clause 4(b)(i) does not provide for making narrow interpretation. The word used is ‘occupation of an accommodation provided by the Government’. The petitioner has also referred to Government Residences (General Pool in Delhi) Rules, 1963, wherein definition of ‘accommodation’ is given as General Pool Residential Accommodation of the Central Government under the control of Directorate of Estates. The said definition of ‘accommodation’ has no applicability to the Office Memorandum dated 27th November, 1965 and the word ‘accommodation’ mentioned in Office Memorandum dated 27th November, 1965 would include guest [2024:RJ-JP:37276-DB] (6 of 7) [CW-2895/2022] house also. The petitioner, herein, was Chief Commissioner, Income Tax and occupying the guest house from 2010 to 2012. The petitioner drew HRA, which was not admissible to him, hence, contention of the petitioner that the same could not have been recovered just prior to few days of his superannuation, cannot be accepted for the very reason that the amount, which was wrongly received by him, was excess payment of public money and it was tax payers’ money, which did not belong to the petitioner and any excess money, which has been paid, can be recovered by the Government. The judgments, on which, reliance has been placed upon by the petitioner, have no bearing on the present case, as this is a case where the petitioner was on the post of Chief Commissioner, Income Tax and he was well aware of the fact that he was not entitled for HRA. Thus, the amount, which he had received as HRA, was recoverable by the respondents and has been rightly recovered so. 15. We are not inclined to entertain the contentions of the petitioner that wrong Rule has been quoted by the Tribunal. Under the writ jurisdiction, we have to see as to whether any injustice has been caused to the petitioner or not? 16. We are of the considered view that any wrong payment made to an officer of the rank of the petitioner can be recovered by the respondents and recovery in this case is to the tune of Rs.3,78,181/-, which cannot be said to be exorbitant so as to cause grave injustice to the petitioner, who has superannuated from the post of Chief Commissioner, Income Tax. [2024:RJ-JP:37276-DB] (7 of 7) [CW-2895/2022] 17. In view of the above, we do not find any force in the writ petition and the same is accordingly, dismissed. No order as to costs. (PRAVEER BHATNAGAR),J (PANKAJ BHANDARI),J Preeti Asopa /42 "