Sh. Shadi Singh, Ambala City V. ITO, Ambala

ITA 868/CHANDI/2011

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6926 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 year(s) 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 13-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order; Opportunity of being heard; Retrospective amendment; Assessment record; Revised return; TDS; Set aside
• Section: 143(3); 45(5); 143(1); 28; 144; 154

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BEN CHES, SMC CHANDIGARH .., ! BEFORE: SHRI. N.K.SAINI, VICE PRESIDENT ITA NO. 853 /CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. BHAJAN SINGH THROUGH L/H DIDAR SINGH. S/O SH. TEJA SINGH, VPO SAUNDA, AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BEHPS4169A APPELLANT RESPONDENT ITA NO. 854 /CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. NASIB SINGH THROUGH L/H SH. NIRMAL SINGH S/O SH. NIRANJAN SINGH VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BMAPS1009Q APPELLANT RESPONDENT ITA NO. 855 /CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. MOHINDER KAUR THROUGH L/H SURINDER KAUR W/O SH. SUCHHA SINGH, VPO SAUNDA, AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: AZTPK1496J APPELLANT RESPONDENT ITA NO. 856 /CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. TARA SINGH S/O SH. KARNAIL SINGH, #21, VPO SAUNDA, AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BZZPS5168Q APPELLANT RESPONDENT ITA NO. 857 /CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. NIRMAL SINGH S/O SH. KARNAIL SINGH, VPO SAUNDA, AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BZZPS5258K APPELLANT RESPONDENT 2 ITA NO. 858/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. BALDEV SINGH S/O SH. THAKUR SINGH VPO SAUNDA, AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: APTPS6506F APPELLANT RESPONDENT ITA NO. 859/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. BACHAN SINGH THROUGH L/H SWARAN SINGH S/O SH. LEHNA SINGH, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BMAPS2328Q APPELLANT RESPONDENT ITA NO. 860/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. B IKRAM SINGH S/O SH. KARNAIL SINGH, # 23, VPO SAUNDA, AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: CAAPS4265H APPELLANT RESPONDENT ITA NO. 861/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. BALBIR SINGH S/O SH. TEJA SINGH, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BEHPS4170R APPELLANT RESPONDENT ITA NO. 862/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. BALBIR SINGH S/O SH. GURDEV SINGH #6, SECTOR 10, AMBALA CITY THE ITO, WARD 1, AMBALA PAN NO: BZPS3388C APPELLANT RESPONDENT ITA NO. 863/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. BALBINDER SINGH THROUGH L/H SMT. BALWINDER KAUR, S/O SH. CHANAN SINGH, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: AXAPS2763D APPELLANT RESPONDENT 3 ITA NO. 864/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. BHUPINDER SINGH S/O SH. GURBAKSH SINGH, VPO SAUNDA, AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BTKPS8321J APPELLANT RESPONDENT ITA NO. 865/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. BANTA SINGH S/O SH. SURJAN SINGH, VPO SAUNDA, AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: AXAPS2776A APPELLANT RESPONDENT ITA NO. 866/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. SWARAN SINGH S/O SH. BACHAN SINGH, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BMAPS2328Q APPELLANT RESPONDENT ITA NO. 867/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. SURINDER SINGH S/O SH. CHANAN SINGH, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BTEPS3694E APPELLANT RESPONDENT ITA NO. 868/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. SHADI SINGH S/O SH. GURDAYAL SINGH, PARSHURAM NAGAR,AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: CAAPS4699R APPELLANT RESPONDENT ITA NO. 869/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. SANTOKH SINGH S/O SH. INDER SINGH,VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BZWPS3741L APPELLANT RESPONDENT ITA NO. 870/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. SUKHDEV SINGH S/O SH. MEHAR SINGH, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BEMPS3137M APPELLANT RESPONDENT 4 ITA NO. 871/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SMT. SURINDER KAUR D/O SH. SUCHHA SINGH, VPO SAUNDA AMBALA THE ITO, WARD 3, AMBALA PAN NO: AZTPK1496J APPELLANT RESPONDENT ITA NO. 872/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. CHAL SINGH S/O SH. INDER SINGH, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BZWPS3882C APPELLANT RESPONDENT ITA NO. 873/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. CHARANJIT SINGH S/O SH. KARNAIL SINGH, 203, VPO SAUNDA, AMBALA CITY THE ITO , WARD 3, AMBALA PAN NO: BZZPS5167B APPELLANT RESPONDENT ITA NO. 874/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. CHARAN SINGH THROUGH L/H SH. SURINDER SINGH, S/O SH. LEHNA SINGH, # 203, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BTEPS3694E APPELLANT RESPONDENT ITA NO. 875/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SMT. CHATAN KAUR D/O SH. BACHNA RAM, #6, #203 VPO SAUNDA, AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BDJPK5360A APPELLANT RESPONDENT ITA NO. 876/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. K ARAM SINGH S/O SH. MAAN SINGH, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: AXBPS0475R APPELLANT RESPONDENT ITA NO. 877/CHD/ 2011 ASSESSMENT YEARS : 2007-08 5 SH. HARBAIL SINGH S/O SH. NIKKA SINGH, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: AXRPS9915Q APPELLANT RESPONDENT ITA NO. 888/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. AJMER S INGH S/O SH. ARJUN SINGH, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BZWPS3740M APPELLANT RESPONDENT ITA NO. 889/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. ATMA SINGH S/O SH. MEHAR SINGH, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BWBPS1988K APPELLANT RESPONDENT ITA NO. 890/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. GOBIND RAM S/O SH. BASANTA RAM, VPO JANDLI AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: AGXPR3607D APPELLANT RESPONDENT ITA NO. 891/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. PRITAM SINGH S/O SH. NAURANG RAM, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BEOPS3609L APPELLANT RESPONDENT ITA NO. 892/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. GURMAIL SINGH S/O SH. MEHAR SINGH, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BYYPS5272F APPELLANT RESPONDENT ITA NO. 893/CHD/ 2011 ASSESSMENT YEARS : 2007-08 6 SH. GURMAIL SINGH S/O SH. TEJA SINGH, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BEHPS4198M APPELLANT RESPONDENT ITA NO. 894/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. GURCHARAN SINGH S/O SH. MEHAR SINGH, THROUGH L/H SH. JASWINDER SINGH AND SH. HARVINDER SINGH, VPO SAUNDA, AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BUQPS4250M APPELLANT RESPONDENT ITA NO. 895/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SMT. GURDEV KAUR D/O SH. MEHAR SINGH, VPO MOHRA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: AQNPK1038P APPELLANT RESPONDENT ITA NO. 896/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SMT. GURDYAL KAUR D/O SH. KEHAR SINGH, #22, VPO SAUNDA, AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BOWPK7622F APPELLANT RESPONDENT ITA NO. 897/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. GANDA SINGH L/H BHUPINDER SINGH, S/O SH. SURJAN SINGH, VPO SAUNDA, AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: AXAPS2777B APPELLANT RESPONDENT ITA NO. 898/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. RAM SARUP S/O SH. BASANTA RAM THROUGH L/H RAMJI LAL, VPO JANDLI AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: AXWPS5056M APPELLANT RESPONDENT 7 ITA NO. 899/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. RAM SINGH S/O SH. MAAN SINGH, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: AWYPS8234J APPELLANT RESPONDENT ITA NO. 900/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. RAMESHWAR DASS S/O SH. DAYA RAM, VPO SAUNDA AMBALA CITY THE ITO , WARD 3, AMBALA PAN NO: ANWPD7743E APPELLANT RESPONDENT ITA NO. 901/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. PREM SINGH S/O SH. TEJA SINGH, VPO SAUNDA AMBALA CITY THE IT O, WARD 3, AMBALA PAN NO: BEHPS4171Q APPELLANT RESPONDENT ITA NO. 902/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. PAL SINGH S/O SH. GURDAYAL SINGH, PARSHURAM NAGAR, AMBALA CITY THE ITO, WARD 1, AMBALA PAN NO: CAEPS2913L APPELLANT RESPONDENT ITA NO. 903/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. PARVIMDER KUMAR S/O SH. RAM KISHAN, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BEMPS3137M APPELLANT RESPONDENT ITA NO. 904/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SMT. MUKHTYAR KAUR D/O SH. AJAIB SINGH THROUGH L/H SH. JASWANT SINGH, # 117, VPO BANONDI AMBALA THE ITO, WARD 3, AMBALA PAN NO: AZHPK8196P APPELLANT RESPONDENT 8 ITA NO. 905/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. MIHAN SING H S/O SH. GURDAYAL SINGH, PARSHURAM NAGAR, AMBALA CITY THE ITO, WARD 1, AMBALA PAN NO: BZZPS5246R APPELLANT RESPONDENT ITA NO. 906/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH . MOHINDER SINGH S/O SH. TEJA SINGH, VPO SAUNDA AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: BEHPS4197E APPELLANT RESPONDENT ITA NO. 907/CHD/ 2011 ASSESSMENT YEARS : 2007-08 SH. JOGINDER SINGH S/O SH. NIRANJAN SINGH VPO SAUNDA, AMBALA CITY THE ITO, WARD 3, AMBALA PAN NO: AZXPS2517E APPELLANT RESPONDENT !' ASSESSEE BY : SHRI. ASHWANI KUMAR, CA #!' REVENUE BY : SMT. CHANDRAKANTA, SR. DR $ %! & DATE OF HEARING : 18/07/2019 '()*! & DATE OF PRONOUNCEMENT : 30/07/2019 '#/ ORDER PER N.K. SAINI, VICE PRESIDENT THESE APPEALS BY DIFFERENT ASSESSEES ARE DIRECTED A GAINST THE COMMON ORDER DT.01/07/2011 OF LD. CIT(A), PANCHKULA FOR TH E ASSESSMENT YEAR 2007-08. 2. SINCE THE ISSUE INVOLVED IS COMMON IN ALL THESE APPEALS WHICH WERE HEARD TOGETHER, SO THESE ARE BEING DISPOSED OFF BY THIS C ONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. AT THE FIRST INSTANCE I WILL DEAL WITH THE APPEA L IN ITA NO. 888/CHD/2011 IN THE CASE OF SH. AJMER SINGH VS. ITO, WARD-3,AMBALA WHEREIN THE FOLLOWING GROUNDS HAVE BEEN RAISED: 9 1. THAT ORDER PASSED U/S 250(6) OF THE INCOME TAX ACT, 1961 BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS), PANCHKULA IS AGAINST LAW AND FACTS ON THE FILE IN AS MUCH SHE WAS NOT JUSTIFIED TO ARBITR ARILY HOLD THAT ACTION OF THE LD. ASSESSING OFFICER IN HOLDING THAT RECTIFICATION IS NOT POSSIBLE IS JUSTIFIED. 2. THAT SHE GRAVELY ERRED IN HOLDING THAT AS THE IS SUE OF TAXABILITY OF INTEREST ON COMPENSATION HAS TRAVELLED UP TO HON'BLE SUPREME CO URT, THE ISSUE IS DEBATABLE AND THUS, DOES NOT FALL WITHIN THE AMBIT OF RECTIFI CATION U/S 154. FROM THE AFORESAID GROUND IT WOULD BE CLEAR THAT ON LY GRIEVANCE OF THE ASSESSEE RELATES TO THE REJECTION OF APPLICATION FO R RECTIFICATION UNDER SECTION 154 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED T O AS ACT), FILED BY THE ASSESSEE BEFORE THE A.O. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 31/03/2008 DECLARING TOTAL INCOME OF RS. 3,13,760/- AFTER CLAIMING EXEMPTION OF RS. 35,85,830/-UNDER SECTION 10(37) OF THE ACT IN R ESPECT OF ENHANCED LAND COMPENSATION. THE ASSESSEE ALSO CLAIMED CREDIT FOR TDS AMOUNTING TO RS. 4,37,534/- CORRESPONDING TO THE INTEREST INCOME DEC LARED IN THE RETURN AND THE ENHANCED COMPENSATION. THE SAID RETURN OF INCOME WA S PROCESSED UNDER SECTION 143(1) OF THE ACT AND THE REFUND WAS ALSO I SSUED ACCORDINGLY. THEREAFTER THE ASSESSEE FILED APPLICATION UNDER SECTION 154 OF THE ACT SEEKING RECTIFICATION ON THE GROUND THAT HE HAD DECLARED ONLY PART OF INT EREST INCOME RECEIVED ALONGWITH ENHANCED LAND COMPENSATION TREATING THE S AME TO BE TAXABLE IN THE YEAR UNDER CONSIDERATION AND THE CLAIM FOR TDS WAS ALSO MADE ACCORDINGLY. IT WAS FURTHER SUBMITTED THAT AS PER THE JUDGMENT OF T HE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. GHANSHYAM (HUF), 315 ITR 1, THE ENTIRE INTEREST WAS TO BE ASSESSED IN THE YEAR OF ITS RECEIPT AND SINCE THIS INTEREST WAS EXEMPT UNDER SECTION 10(37) IN THE ASSESSEES CASE BEING PART OF ENHANCED COMPENSATION, THEREFORE HIS ENTIRE INTEREST INCOME SHOULD HAVE BE EN TREATED TO HAVE BEEN DECLARED IN THE INSTANT ASSESSMENT YEAR AND SINCE I T WAS EXEMPT, THE ENTIRE TDS MAY BE REFUNDED ALONGWITH THE INTEREST. 5. THE A.O. AFTER CONSIDERING THE APPLICATION OF TH E ASSESSEE MOVED UNDER SECTION 154 OF THE ACT OBSERVED THAT AS ON DATE THE RETURNED INCOME STANDS TO BE THE ASSESSED INCOME SO THERE WAS NO MISTAKE APPA RENT FROM THE RECORD WARRANTING RECTIFICATION THEREOF AND THAT THE ASSES SEE INTENDED HIS CASE TO BE DECIDED AS PER THE PARTICULARS WHICH WERE NOT SHOWN IN THE RETURN OF INCOME. HE FURTHER OBSERVED THAT ALTHOUGH AFTER RESPECTFULLY C ONSIDERATION OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. GHANSHYAM (HUF)(SUPRA), THE ASSESSEES ENTIRE INCOME WAS ASSESSABLE IN THE YEAR OF ITS RECEIPT BUT THE 10 RECTIFICATION WAS NOT A PROPER PROCESS IN THIS CASE BECAUSE THE ASSESSEE NEITHER CLAIMED THE RELEVANT RELIEF IN HIS ORIGINAL RETURN NOR ANY RETURN HAD BEEN REVISED TO THIS EFFECT AS PER THE RELEVANT PROVISION OF THE LAW. ACCORDINGLY THE RECTIFICATION APPLICATION MOVED BY THE ASSESSEE WAS REJECTED. 6. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A)AND FURNISHED THE WRITTEN SUBMISSION WHICH HAD BEEN INC ORPORATED IN PARA 3 OF THE IMPUGNED ORDER AND READ AS UNDER: 'THE PRESENT APPEAL HAS BEEN FILED AGAINST ORDER DA TED 10-01-2011 PASSED U/S 154 BY THE LD. INCOME TAX OFFICER, WARD-3, AMBALA. THE APPELLANT HAS RAISED THE FOLLOWING GROUNDS OF APPEAL VIDE THE MEMORANDUM OF APPEAL:- 'I) THE ORDER PASSED U/S 154 BY THE LD. ASSESSING O FFICER IS AGAINST THE LAW AND FACTS ON THE FILE IN AS MUCH AS HE WAS NOT JUSTIFIE D TO HOLD THAT IN THE INSTANT CASE RECTIFICATION IS NOT THE PROPER PROCESS. II) THAT ALL FACTS RELATING TO THE NATURE OF RECEIP TS AND TDS WERE ON RECORD WHICH THE LD. ASSESSING OFFICER FAILED TO APPRECIATE BEFO RE ADJUDICATING APPLICATION U/S 154'. FACTS IN BRIEF ARE THAT THE APPELLANT IS AN INDIVID UAL AND RETURN FOR A.Y. 2007-08 WAS FILED ON 24-011-2008 DECLARING INCOME AT RS.3,42,73 5/-. DURING THE YEAR IN APPEAL, THE APPELLANT HAD RECEIVED ENHANCED COMPENSATION AL ONGWITH INTEREST AMOUNTING TO RS.86,17,840/-. THE APPELLANT IS PRIMA RILY AN AGRICULTURIST AND WAS HAVING AGRICULTURAL LAND IN VILLAGE SAUNDA, DISTT. AMBALA. THE LAND WAS ACQUIRED BY THE LAND ACQUISITION OFFICER AND AS ALREADY SUBM ITTED ABOVE, THE APPELLANT RECEIVED ENHANCED COMPENSATION AND INTEREST AGGREGA TING TO RS.86,17,840/- WHICH, IN FACT COMPRISED OF ENHANCED COMPENSATION O F RS.38,97,140/- AND INTEREST OF RS.47,20,700/-. WHILE FILING THE RETURN , THE APPELLANT DECLARED GROSS TOTAL INCOME OF RS 42,39,875/- (COPY OF COMPUTATION CHART OF INCOME ENCLOSED) ON WHICH THE APPELLANT CLAIMED EXEMPTION U/S 10(37) TO THE TUNE OF RS.38,97,140/- BEING THE AMOUNT OF ENHANCED COMPENSATION. THE BALA NCE AMOUNT OF RS.3,42,735/-, RECEIVED AS INTEREST ON THE ENHANCED COMPENSATION RELEVANT FOR A:Y: 2007-08 WAS DECLARED AS TAXABLE INCOME. THE AP PELLANT HAD BIFURCATED THE INTEREST ON YEARLY BASIS AS PER THE JUDGMENT OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. HARDWARI LAL, REP ORTED IN 219 CTR, P.583. AS PER THE JUDGMENT OF THE HON'BLE SUPREME COURT DE LIVERED ON 16-07-2009 IN THE CASE OF CIT VS. GHANSHYAM DASS, REPORTED IN 315 ITR , P.1, THE ENTIRE INTEREST RECEIVED BY THE ASSESSEE IS TO BE TAXED IN THE YEAR OF RECEIPT. THEIR LORDSHIPS OF THE HON'BLE SUPREME COURT FURTHER HELD THAT INTERES T RECEIVED U/S 28 OF THE LAND ACQUISITION ACT HAS TO BE TREATED AS A PART OF THE ENHANCED COMPENSATION AND INTEREST RECEIVED U/S 34 OF THE LAND ACQUISITION AC T HAS TO BE TREATED AS INTEREST. IN THE APPELLANT'S CASE, THE ENTIRE INTEREST RECEIV ED WAS U/S 28 OF THE LAND ACQUISITION ACT AND THUS, THE TREATMENT TO INTEREST WAS TO BE THE SAME AS WAS TO BE GIVEN TO THE AMOUNT OF ENHANCED COMPENSATION. FOLLOWING THE RATIO OF ABOVE SAID JUDGMENT, THE ENT IRE AMOUNT OF INTEREST RECEIVED DURING THE YEAR WAS TO BE ACCOUNTED FOR DU RING THE RELEVANT YEAR I.E. A:Y: 2007-08 AND AS THE SAME WAS INTEREST U/S 28 OF THE LAND ACQUISITION ACT, THE SAME WAS TO BE TREATED AS EXEMPT, U/S 10(37). THE APPELLANT, WHILE FILING THE RETURN, AS ALREADY SUBMITTED ABOVE HAD DECLARED ONLY THE INTEREST RELEVANT FOR THIS YEAR BUT IN VIE W OF THE RATIO OF THE SUPREME COURT JUDGMENT MENTIONED SUPRA, THE APPELLANT VIDE APPLIC ATION MADE U/S 154 PRAYED THAT THE ENTIRE AMOUNT OF INTEREST SHOULD BE INCLUDED IN THE RELEVANT ASSESSMENT YEAR AND THE TREATMENT OF THE AMOUNT OF THE INTEREST BE GIVEN AS OBSERVED BY THEIR LORDSHIPS OF THE HON'BLE SUPREME COURT. TDS CERTIFICATE SHOWING THE ENTIRE AMOUNT OF INTEREST WAS A PART OF THE RECORD. THE LD. ASSESSING OFFICER HAS REJECTED APPLICATION FILED U/S 154 ON T HE GROUND THAT THE RECTIFICATION 11 IS NOT A PROPER PROCESS IN THIS CASE BECAUSE THE AS SESSEE HAS NEITHER CLAIMED THE RELEVANT RELIEF IN THE ORIGINAL RETURN, NOR ANY RET URN HAS BEEN REVISED TO THIS EFFECT AS PER THE RELEVANT PROVISIONS OF THE LAW. IT IS RESPECTFULLY SUBMITTED THAT THE ASSESSEE HAD FILED THE RETURN ON 24-01-08 AND IN ANY CASE, AS THE RETURN WAS LATE AND NOT FILED W ITHIN THE DUE TIME AS PRESCRIBED U/S 139(1), THE RETURN COULD NOT HAVE BEEN REVISED AND OTHERWISE ALSO, THE JUDGMENT OF THEIR LORDSHIPS OF THE SUPREME COURT IS DATED 16-07-09 AND EVEN IF THE RETURN FOR A:Y: 2007-08 HAD BEEN FILED WITHIN T IME, THE LAST DATE FOR REVISION OF THE RETURN WAS 31-03-09 AND AS THE JUDGMENT MENTION ED SUPRA WAS DELIVERED AFTER 31-03-09, THE REVISION WOULD NOT HAVE BEEN PO SSIBLE. SECONDLY, AS REGARDS THE LD. ASSESSING OFFICER'S CA SE THAT THE ASSESSEE HAS NOT CLAIMED THE RELEVANT RELIEF IN THE ORIGINAL RETURN, IT HAS BEEN AMPLY EXPLAINED THAT THE RETURN HAD BEEN FILED KEEPING IN VIEW THE RATIO OF JUDGMENT OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF HARDWARI LAL MENTIONED SUPRA AND IT IS ONLY AS A RESULT OF JUDGMENT OF THE HON'BLE SUPR EME COURT THAT THE ENTIRE INTEREST IS TO BE DECLARED IN THE YEAR OF RECEIPT. THE ASSESSEE APPLIED TO THE LD. ASSESSING OFFICER FOR INCLUSION OF THE ENTIRE INTER EST IN THE YEAR OF RECEIPT I.E. A:Y: 2007-08 AND AS THE INTEREST HAD BEEN RECEIVED U/S 2 8 OF THE LAND ACQUISITION ACT, THE SAME WAS TO BE TREATED AS PART OF THE ENHANCED COMPENSATION WHICH WAS EXEMPT U/S 10(37). IN ANY CASE, THE TDS CERTIFICATE REFLECTING THE TOTAL AMOUNT OF INTEREST WAS A PART OF THE ASSESSMENT RECORD. THE APPELLANT RELIED UPON THE FOLLOWING JUDGMENTS : - I) CIT VS. MAHALAKSHMI TEXTILE MILLS L TD, REPORTED IN 66 ITR 710 (SC) II) ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE L TEL. 305 ITR 227(SC) IT MAY NOT BE OUT OF PLACE TO MENTION THAT IN CASES WHERE THE LD. ASSESSING OFFICER FRAMED ASSESSMENT U/S 143(3) HAD TREATED TH E ENTIRE AMOUNT OF INTEREST AS TAXABLE DURING A:Y: 2007-08 ON THE GROUND THAT THE ENTIRE INTEREST RECEIVED DURING THE YEAR WAS IN HIS OPINION TAXABLE IN THE YEAR OF RECEIPT. THE LD. ASSESSING OFFICER, WHILE FRAMING THOSE ASSESSMENTS REFERRED TO THE JUD GMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. GHANSHYAM DASS REFERRED TO SUPRA. AT THAT POINT OF TIME, THE ASSESSEE SUBMITTED THAT THE RATI O OF THAT JUDGMENT IS NOT RELATED TO THE CASE OF THE ASSESSEE AND THE LD. ASS ESSING OFFICER RELYING ON THE SAID JUDGMENT TAXED THE ENTIRE AMOUNT OF INTEREST A ND ALSO GAVE CREDIT FOR THE WHOLE AMOUNT OF TDS ON THE BASIS OF TDS CERTIFICATE ENCLOSED WITH THE RETURN. IN THOSE CASES, THE LD. CIT(A) RELYING ON THE JUDGMENT OF THE HON'BLE SUPREME COURT HELD THAT NO DOUBT THE ENTIRE INTEREST IS TO BE TRE ATED AS INCOME OF THE YEAR IN WHICH THE SAME HAS BEEN RECEIVED, BUT AS THE INTERE ST RECEIVED WAS U/S 28 OF THE LAND ACQUISITION ACT, THE SAME WAS TO BE TREATED AS A PART OF THE ENHANCED COMPENSATION WHICH WAS EXEMPT U/S 10(37). THE DEPARTMENT WENT IN APPEAL AGAINST ORDER OF THE LD. CIT(A) AND THE HON'BLE CHANDIGARH BENCH DISMISSED THE DEPARTMENT'S APPEAL. WHILE GIVING EFFECT TO THE ORDER OF THE LD. CIT(A) IN THOSE CASES, THE LD. ASS ESSING OFFICER DELETED THE ADDITION MADE ON ACCOUNT OF INTEREST, BUT RESTRICTE D THE CLAIM OF TDS TO THE AMOUNT CLAIMED BY THE ASSESSEES IN THEIR ORIGINAL R ETURNS. THE ASSESSEE WENT IN APPEAL AGAINST THE ORDER GIVING APPEAL EFFECT BEFOR E YOUR HONOUR'S PREDECESSOR AND YOUR HONOUR'S PREDECESSOR VIDE ORDER DATED 31/0 3/2011 HAS HELD THAT CREDIT HAS TO BE ALLOWED FOR THE FULL AMOUNT OF TDS. IT IS RESPECTFULLY PRAYED THAT AS ALL FACTS RELATIN G TO THE RECEIPT OF INTEREST AND THE DEDUCTION OF TDS WERE ON RECORD AND AS PER THE JUDG MENT OF THE HON'BLE SUPREME COURT IN THE CASE OF GHANSHYAM DASS REFERRE D TO SUPRA, THE MISTAKE IS APPARENT FROM RECORD AND THE LD. ASSESSING OFFICER MAY KINDLY BE DIRECTED TO GIVE CREDIT FOR THE ENTIRE AMOUNT OF TDS DURING A. Y 2007-08 AND THE APPEAL BE KINDLY ADJUDICATED ACCORDINGLY.' 7. THE LD.CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSERVED THAT IN ORDER TO RECTIFY THE MISTAKE UNDER SECTION 154 OF THE ACT THE MISTAKE HAS 12 TO BE APPARENT FROM THE RECORD AND THE JURISDICTION FOR RECTIFICATION WAS NOT AVAILABLE WHERE THE MATTER TO BE RECTIFIED WAS DEBA TABLE. ACCORDING TO HER THE ENTIRE INTEREST RECEIPT BY THE ASSESSEE ALONGWITH E NHANCED LAND COMPENSATION WAS TAXABLE IN THE YEAR OF RECEIPT OR TO THE EXTENT RELATABLE TO WHICH IT PERTAINED, WAS UNDOUBTEDLY A DEBATABLE ISSUE AND TH E DEBATE OVER THE ISSUE HAD LEAD THE MATTER TO THE HON'BLE SUPREME COURT. T HE LD.CIT(A) ALSO OBSERVED THAT SHEER FACT THAT THE ISSUE OF TAXABILITY OF INT EREST ON COMPENSATION HAD TRAVELED UP TO THE SUPREME COURT SHOWS THAT THE ISS UE WAS DEBATABLE. ACCORDINGLY IT WAS HELD THAT A DECISION ON A DEBATA BLE POINT OF LAW WAS NOT A MISTAKE APPARENT ON THE RECORD. RELIANCE WAS PLACED ON THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF T.S. BALRAM VS . VOLKART BROTHERS REPORTED AT 82 ITR 50. 8. NOW THE ASSESSEE IS IN APPEAL. 9. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBM ISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE AS SESSEE EARLIER DISCLOSED THE INTEREST ON THE ENHANCED COMPENSATION WHICH PERTAIN ED TO THE YEAR UNDER CONSIDERATION AND ALSO CLAIMED REFUND OF THE TDS RE LATABLE TO THE SAID INCOME. HOWEVER THE ISSUE RELATING TO THE TAXABILITY OF THE INTEREST ON THE COMPENSATION WAS SETTLED BY HON'BLE SUPREME COURT IN THE CASE OF CIT VS. GHANSHYAM (HUF) REPORTED AT 315 ITR 1 WHEREIN IT WAS HELD THAT ENTI RE INTEREST WAS TAXABLE IN THE YEAR OF RECEIPT AND SINCE THE RETURN FILED BY THE A SSESSEE WAS BELATED SO IT COULD NOT BE REVISED THEREFORE THE ONLY WAY LEFT WITH THE ASSESSEE WAS TO FILE AN APPLICATION UNDER SECTION 154 OF THE ACT BECAUSE AF TER THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. GHANSHYAM (HUF ) (SUPRA) THE INTEREST AND THE COMPENSATION WAS TO BE TAXED IN THE YEAR OF REC EIPT, SO IT WAS A MISTAKE RECTIFIABLE UNDER SECTION 154 OF THE ACT. IT WAS AL SO STATED THAT EARLIER THE INTEREST RECEIVED UNDER SECTION 28 OF THE LAND ACQUISITION A CT WAS EXEMPT FROM INCOME AND ONLY INTEREST UNDER SECTION 34 OF THE LAND ACQU ISITION ACT WAS TAXABLE. IT WAS FURTHER SUBMITTED THAT THE LD.CIT(A) WRONGLY HE LD THAT THE ISSUE OF TAXABILITY OF INTEREST WAS A DEBATABLE ISSUE, ON THE CONTRARY THIS ISSUE WAS SETTLED BY THE HON'BLE APEX COURT, SO IT WAS LAW OF LAND AND THE I SSUE DID NOT REMAIN DEBATABLE AFTER THE JUDGMENT OF THE HON'BLE APEX CO URT. THE RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS: CIT VS. GHANSHYAM (HUF) [2009] 315 ITR 1 (SC) CIT VS. MAHALAKSHMI TEXTILE MILLS LTD. [1967] 66 IT R 710 (SC) CIT VS. GOVINDBHAI MAMAIYA [2014] 367 ITR 498 (SC) 13 ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. [2008 ] 305 ITR 227 (SC) CIT VS. CHET RAM (HUF) [2018] 400 ITR 23 SHRI SURINDER KUMAR & ANOTHER VS. DCIT IN ITA NO. 5 39/CHD/2016 (CHD. TRIB) DT. 04/10/2018 IT WAS FURTHER SUBMITTED THAT ANY DECISION OF THE J URISDICTIONAL HIGH COURT RENDERED EVEN ON THE BASIS OF THE SUBSEQUENT ORDER OF THE JURISDICTIONAL HIGH COURT PASSED AFTER THE ORDER OF THE REVENUE AUTHORI TY, IT COULD BE SAID THAT THE MISTAKE WAS APPARENT FROM THE RECORD. RELIANCE WAS PLACED ON THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE O F CIT VS. ARUNA LUTHRA (2001) 252 ITR 76. HOWEVER IT WAS ADMITTED THAT THE SAID D ECISION WAS NOT CITED EITHER BEFORE THE A.O. OR THE LD. CIT(A). 10. IN HER RIVAL SUBMISSION THE LD. SR. DR STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND REITERATED THE OBSERVATIONS M ADE BY THE A.O. AND THE LD. CIT(A) IN THEIR RESPECTIVE ORDERS. 10.1 IT WAS FURTHER STATED THAT THE ASSESSEE NEITHE R DISCLOSED THE ENTIRE INTEREST IN THE ORIGINAL RETURN OF INCOME NOR REVISED THE RE TURN OF INCOME, THEREFORE THE CLAIM OF THE ASSESSEE WAS NOT ACCEPTABLE AND SINCE THERE WAS NO MISTAKE APPARENT FROM THE RECORD, THE RECTIFICATION APPLICA TION MOVED BY THE ASSESSEE UNDER SECTION 154 OF THE ACT WAS NOT MAINTAINABLE A S SUCH THE A.O. RIGHTLY REJECTED THE APPLICATION OF THE ASSESSEE AND THE LD . CIT(A) WAS FULLY JUSTIFIED IN CONFIRMING THE VIEW TAKEN BY THE A.O. 10.2 LD. SR. DR ALSO FURNISHED THE WRITTEN SUBMISSI ONS WHICH READ AS UNDER : 1. THE MAIN RELIEF CLAIMED BY THE ASSESEE BEFORE THE A O BY WAY OF APPLICATION U/S 154 IS REFUND OF TDS AMOUNT ON PART OF THE INTEREST ON ENHANCED LAND COMPENSATION. IT IS IMPORTANT TO NOTE THAT THE CREDIT OF THE IMPUGNED TDS AND CONSEQUENTLY REFUND WAS NOT CLAIMED IN THE ROI FILED U/ S 139(1). ALSO NO REVISED RETURN WAS FURNISHED TO CLAIM THE ADDITIONA L REFUND. THIS FACT IS MENTIONED IN PARA 4 OF THE ASSESSMENT ORDER. THE CLAIM OF ADD ITIONAL REFUND IS MADE BY WAY OF APPLICATION U/S 154. 2. IT IS SUBMITTED THAT THE IT ACT HAS LAID DOWN CERTA IN CONDITIONS AND TIME FRAMET TO CLAIM REFUND. SECTION 237 OF THE ACT PROV IDES FOR CLAIM OF REFUND OF EXCESS AMOUNT OF TAX PAID BY THE ASSESSEE OR ON HIS BEHALF FOR ANY ASSESSMENT YEAR. THE FORM OF CLAIM FOR REFUND ARE PRESCRIBED B Y SECTION 239 (1) OF THE ACT. LIMITATIONS FOR FORM OF REFUND ARE PRESCRIBED BY SE CTION 239(2) OF THE ACT AS PER WHICH NO CLAIM OF REFUND SHALL BE ALLOWED AFTER ONE YEAR FROM THE LAST DAY OF THE ASSESSMENT YEAR. IN THE PRESENT CASE THE TIME LIMIT TO CLAIM REFUND WAS 31/3/2009. HOWEVER NO CLAIM WAS MADE BY THE ASSESSEE BEFORE TH E DUE DATE. THIS LIMITATION CANNOT BE SIDE STOPPED BY INVOKING SECTION 154. 3. IT IS ALSO SUBMITTED THAT U/S 119 (2) (B) THE BOARD HAS THE POWER TO CONDONE THE DELAY IN CLAIMING REFUND IN CASES OF GE NUINE HARDSHIP AND THIS POWER OF BOARD CANNOT BE USURPED BY HON'BLE ITAT IN THE NAME OF RECTIFICATION OF MISTAKE APPARENT FROM RECORD. 14 4. IN VIEW OF THE ABOVE SUBMISSIONS IT IS PRAYED THAT THE APPEAL OF THE ASSESEE MAY KINDLY BE DISMISSED. 11. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN TH E PRESENT CASE IT IS AN ADMITTED FACT THAT THE ASSESSEE HAD SHOWN THE INTER EST ON THE ENHANCED COMPENSATION WHICH WAS RELATED / RELEVANT FOR THE Y EAR UNDER CONSIDERATION AND ALSO CLAIMED THE REFUND ON THE BASIS OF THE TDS WHICH WAS RELATABLE TO THE SAID YEAR. HOWEVER THE ISSUE RELATED TO THE TAXABIL ITY OF THE INTEREST WAS SETTLED BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. GHANSHYAM (HUF)(SUPRA) WHEREIN IT WAS HELD AS UNDER: THUS, INTEREST IS DIFFERENT FROM COMPENSATION. HOWEVER, I NTEREST PAID ON THE EXCESS AMOUNT UNDER SECTION 28 DEPENDS UPON A CLAIM BY THE PERSON WHOSE LAND IS ACQUIRED, WHEREAS INTEREST UNDER SECTION 34 IS FOR DELAY IN MAKING PAYMENT. INTEREST UNDER SECTION 28 IS PART OF THE A MOUNT OF COMPENSATION WHEREAS INTEREST UNDER SECTION 34 IS ONLY FOR DELAY IN MAKING PAYMENT AFTER THE COMPENSATION AMOUNT IS DETERMINED. INTEREST UNDER S ECTION 28 IS A PART OF ENHANCED VALUE OF THE LAND, WHICH IS NOT THE CASE I N THE MATTER OF PAYMENT OF INTEREST UNDER SECTION 34. [PARA 24] IT IS CLEAR FROM READING OF SECTIONS 23(1 A), 23(2) AS ALSO SECTION 28 OF THE 1894 ACT THAT ADDITIONAL BENEFITS ARE AVAILABLE ON THE MARKE T VALUE OF THE ACQUIRED LAND UNDER SECTION 23(1 A) AND 23(2) WHEREAS SECTION 28 IS AVAILABLE IN RESPECT OF THE ENTIRE COMPENSATION. THUS, INTEREST AWARDABLE UNDER SECTION 28 WOULD INC LUDE WITHIN ITS AMBIT BOTH, THE MARKET VALUE AND THE STATUTORY SOLATIUM. IT WOULD , THUS, BE EVIDENT THAT EVEN THE PROVISIONS OF SECTION 28 AUTHORISE THE GRANT OF INT EREST ON SOLATIUM AS WELL. THUS, SOLATIUM MEANS AN INTEGRAL PART OF COMPENSATION AND ; INTEREST WOULD BE PAYABLE ON IT. SECTION 34 POSTULATES AWARD OF INTEREST AT 9 PER CENT PER ANNUM FROM THE DATE OF TAKING POSSESSION ONLY UNTIL IT IS PAID OR DEPOSITED. IT IS A MANDATORY PROVISION. BASICALLY, SECTION 34 PROVIDES FOR PAYME NT OF INTEREST FOR DELAYED PAYMENT. [PARA 25] IT HAS FURTHER BEEN HELD AS UNDER : SINCE THE ENHANCED COMPENSATION/CONSIDERATION (INCL UDING INTEREST UNDER SECTION 28 OF THE 1894 ACT) BECOMES PAYABLE/PAID UN DER THE 1894 ACT AT DIFFERENT STAGES, THE RECEIPT OF SUCH ENHANCED COMP ENSATION/CONSIDERATION IS TO BE TAXED IN THE YEAR OF RECEIPT SUBJECT TO ADJUSTME NT, IF ANY, UNDER SECTION 155(16) OF THE 1961 ACT, LATER ON. HENCE, THE YEAR IN WHICH ENHANCED COMPENSATION IS RECEIVED IS THE YEAR OF TAXABILITY. CONSEQUENTLY, EVEN IN CASES WHERE PENDING APPEAL, THE COURT/TRIBUNAL/AUTHORITY, BEFORE WHICH APPEAL IS PENDING, PERMITS THE CLAIMANT TO WITHDRAW, AGAINST SECURITY OR OTHERWISE THE ENHANCED COMPENSATION (WHICH IS IN DISPUTE), THE SA ME IS LIABLE TO BE TAXED UNDER SECTION 45(5). THIS IS THE SCHEME OF SECTION 45(5) AND SECTION 155(16). EVEN BEFORE THE INSERTION OF SECTION 45(5)(C ) AND SECTI ON 155(16) WITH EFFECT FROM 1-4- 2004, THE RECEIPT OF ENHANCED COMPENSATION UNDER SE CTION 45(5)(B) WAS TAXABLE IN THE YEAR OF RECEIPT WHICH IS ONLY REINFORCED BY INSERTION OF CLAUSE (C) BECAUSE THE RIGHT TO RECEIVE PAYMENT UNDER THE 1894 ACT IS NOT IN DOUBT. THE COMPENSATION, INCLUDING ENHANCED COMPENSATION/CONSI DERATION UNDER THE 1894 ACT, IS BASED ON THE FULL VALUE OF PROPERTY AS ON D ATE OF NOTIFICATION UNDER SECTION 4 OF THAT ACT. WHEN THE COURT/TRIBUNAL DIRECTS PAYM ENT OF ENHANCED COMPENSATION UNDER SECTION 23(1 A), OR SECTION 23(2 ) OR UNDER SECTION 28 OF THE 1894 ACT, IT IS ON THE BASIS THAT AWARD OF THE COLL ECTOR OR THE COURT UNDER REFERENCE HAS NOT COMPENSATED THE OWNER FOR THE FUL L VALUE OF THE PROPERTY AS ON DATE OF NOTIFICATION. [PARA 35] 15 11.1 SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE APE X COURT IN THE CASE OF CIT VS. GOVIND BHAI (2014) 367 ITR 498 (SUPRA) WHEREIN IT HAS BEEN HELD AS UNDER : (II) THAT THE INTEREST RECEIVED UNDER SECTION 28 OF THE LAND ACQUISITION ACT, 1894, ON THE ENHANCED INCOME WAS TO BE TAXED IN THE YEAR IN WHICH SUCH INTEREST ON THE ENHANCED COMPENSATION WAS RECEIVED AND WAS NOT TO BE SPREAD OVER THE PERIOD IN QUESTION. 11.2 SIMILARLY THE HON'BLE APEX COURT IN THE CASE O F CIT VS. CHET RAM (HUF) [2018]400 ITR 23 (SUPRA) HELD AS UNDER: THAT THE ASSESSEES WHO HAD RECEIVED SOME AMOUNT OF ENHANCED COMPENSATION AS ALSO INTEREST THEREON UNDER AN INTE RIM ORDER PASSED BY THE HIGH COURT IN PENDING APPEALS RELATING TO LAND ACQUISITI ON WERE LIABLE TO BE ASSESSED TO INCOME-TAX IN THE YEAR IN WHICH IT WAS RECEIVED. 12. IN THE PRESENT CASE THE ISSUE RELATED TO THE TA XABILITY OF INTEREST ON THE ENHANCED COMPENSATION DID NOT REMAIN DEBATABLE AFTE R THE ORDER OF THE HON'BLE APEX COURT IN THE CASE OF CIT VS. GHANSHYAM (HUF)(SUPRA)WHEREIN THE ISSUE WAS SETTLED AND IT WAS HELD THAT THE ENTIRE I NTEREST ON THE COMPENSATION RECEIVED WAS TO BE TAXED IN THE YEAR OF RECEIPT. 13. IN THE INSTANT CASE THE LD. COUNSEL FOR THE ASS ESSEE POINTED OUT THAT THE RETURN FILED BY THE ASSESSEE WAS BELATED THEREFORE REVISED RETURN COULD NOT BE FILED AND THE ONLY WAY TO CLAIM THE REFUND OF TDS W AS TO FILE THE RECTIFICATION APPLICATION UNDER SECTION 154 OF THE ACT. HON'BLE J URISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. ARUNA LUTHRA (SUPRA) HELD THAT THE POWER UNDER SECTION 154 CAN BE INVOKED EVEN WHEN THE ISSUE IS DECIDED BY THE JU RISDICTIONAL HIGH COURT OR SUPERIOR COURT, AFTER THE ORDER HAS BEEN PASSED AND THAT THE PROCEEDINGS FOR RECTIFICATION OF AN ORDER CAN BE INITIATED ON THE B ASIS OF AN ORDER PASSED BY THE HON'BLE JURISDICTIONAL HIGH COURT OR THE HON'BLE SU PREME COURT SUBSEQUENT TO THE ORDER PASSED BY THE AUTHORITY UNDER THE ACT. NO W THE QUESTION ARISE AS TO WHETHER THE A.O. WAS REQUIRED TO RECTIFY THE ORDER PASSED BY HIM UNDER SECTION 143(1) OF THE ACT OR NOT. ON A SIMILAR ISSUE THE HO N'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SMT. ARUNA LUTHRA (2001) 252 IT R 76 (SUPRA) HELD AS UNDER: THE POWER GIVEN TO THE AUTHORITY UNDER SECTION 154 OF THE INCOME-TAX ACT, 1961, IS VERY WIDE. IT CAN CORRECT 'ANY MISTAKE' PROVIDED IT IS 'APPARENT FROM THE RECORD'. SECTION 154 DOES NOT PROVIDE THAT THE ERROR HAS TO BE SEEN IN THE ORDER WITH REFERENCE TO THE DATE ON WHICH IT WAS PASSED. THE M ISTAKE HAS TO BE ON THE RECORD OF THE CASE. THE RECORD WOULD INCLUDE EVERYT HING ON THE CASE FILE. THE RETURN, THE EVIDENCE AND THE ORDER ARE A PART OF TH E RECORD. THUS, EVEN IN THE CASE OF AN ASSESSMENT UNDER SECTION 143(1), IT CANN OT BE ASSUMED THAT THERE CAN BE NO ERROR APPARENT FROM THE RECORD. SECTION 154 H AS BEEN ENACTED TO ENABLE THE AUTHORITY TO RECTIFY THE MISTAKE. THE LEGISLATI VE INTENT IS NOT TO ALLOW IT TO 16 CONTINUE. THIS PURPOSE HAS TO BE PROMOTED. THE LEGI SLATURE'S WILL HAS TO BE CARRIED OUT. BY PLACING A NARROW CONSTRUCTION, THE OBJECT O F THE LEGISLATION WOULD BE DEFEATED. PARLIAMENT HAS PRESCRIBED A PERIOD OF FOU R YEARS FOR CORRECTION OF THE MISTAKE. WHILE AN ASSESSMENT UNDER SECTION 143 OR 1 44 HAS TO BE NORMALLY MADE WITHIN A PERIOD OF ONE OR TWO YEARS, THE MISTAKE CA N BE RECTIFIED AT ANY TIME DURING THE PERIOD OF FOUR YEARS. THE OBVIOUS INTENT ION OF THE LEGISLATURE IS THAT IF THE MISTAKE HAS COME TO THE NOTICE OF THE AUTHORITY WITHIN THE PRESCRIBED TIME, IT SHOULD NOT BE ALLOWED TO CONTINUE. SECTION 154 CLEA RLY PROVIDES FOR THE INTERVENTION OF THE AUTHORITY WITHIN THE SPECIFIED TIME, SUBJECT TO THE CONDITION THAT THE MISTAKE IS APPARENT AND THE ISSUE IS NOT D EBATABLE. THUS, ANY RIGHT UNDER AN ORDER IS SUBJECT TO THE PROVISION OF THE STATUTE . THAT BEING SO THERE IS NO VESTED RIGHT WHICH CAN BE SAID TO HAVE BEEN TAKEN AWAY. TH E PROVISION HAS INBUILT SAFEGUARDS. IT PROVIDES FOR THE ISSUE OF NOTICE. IT ENSURES THE GRANT OF AN OPPORTUNITY TO BE HEARD. IT LIMITS THE JURISDICTION OF THE AUTHORITY. THE ACTION CAN BENEFIT THE ASSESSEE AS WELL AS THE REVENUE. IN THI S SITUATION, THERE IS NO GROUND FOR PLACING AN UNDULY RESTRICTED INTERPRETATION ON THE PROVISION. THE POWER UNDER SECTION 154 CAN BE INVOKED EVEN WHEN AN ISSUE IS DECIDED BY THE JURISDICTIONAL HIGH COURT OR A SUPERIOR COURT AFTER THE ORDER HAD BEEN PASSED. 13.1 SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE APE X COURT IN THE CASE OF ASST. CIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (2008) 305 ITR 227(SC) WHEREIN THEIR LORDSHIP HELD IN PARA 41 & 42 AS UNDER : 41. A SIMILAR QUESTION CAME UP FOR CONSIDERATION B EFORE THE HIGH COURT OF GUJARAT IN SUHRID GEIGY LTD. V. COMMISSIONER OF SURTAX [1999] 237 ITR 834. IT WAS HELD BY THE DIVISION BENCH OF THE HIGH COURT THAT I F THE POINT IS COVERED BY A DECISION OF THE JURISDICTIONAL COURT RENDERED PRIOR OR EVEN SUBSEQUENT TO THE ORDER OF RECTIFICATION, IT COULD BE SAID TO BE A 'MISTAKE APPARENT FROM THE RECORD' UNDER SECTION 254(2) OF THE ACT AND COULD BE CORRECTED BY THE TRIBUNAL. 42. IN OUR JUDGMENT, IT IS ALSO WELL-SETTLED THAT A JUDICIAL DECISION ACTS RETROSPECTIVELY. ACCORDING TO BLACKSTONIAN THEORY, IT IS NOT THE FUNCTION OF THE COURT TO PRONOUNCE A 'NEW RULE' BUT TO MAINTAIN AND EXPOUND THE 'OLD ONE'. IN OTHER WORDS, JUDGES DO NOT MAKE LAW, THEY ONLY DISC OVER OR FIND THE CORRECT LAW. THE LAW HAS ALWAYS BEEN THE SAME. IF A SUBSEQUENT D ECISION ALTERS THE EARLIER ONE, IT (THE LATER DECISION) DOES NOT MAKE NEW LAW. IT ONLY DISCOVERS THE CORRECT PRINCIPLE OF LAW WHICH HAS TO BE APPLIED RETROSPECT IVELY. TO PUT IT DIFFERENTLY, EVEN WHERE AN EARLIER DECISION OF THE COURT OPERATED FOR QUITE SOME TIME, THE DECISION RENDERED LATER ON WOULD HAVE RETROSPECTIVE EFFECT CLARIFYING THE LEGAL POSITION WHICH WAS EARLIER NOT CORRECTLY UNDERSTOOD. 14. IN THE PRESENT CASE IT IS AN ADMITTED FACT THAT THE ORDER OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SM T. ARUNA LUTHRA(SUPRA) WAS NOT BROUGHT TO THE NOTICE OF THE A.O. AS WELL AS THE LD . CIT(A) AS HAS BEEN ADMITTED BY THE LD. COUNSEL FOR THE ASSESSEE AT BAR. I, THER EFORE, DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE A.O. T O BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AND ALSO KEEPING IN VIEW THE RA TIO LAID DOWN BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE AFORESAID REFERRED TO CASE. 15. THE FACTS IN ALL OTHER CASES ARE SIMILAR TO THE FACTS INVOLVE IN ITA NO. 888/CHD/2011 IN THE CASE OF SH. AJMER SINGH VS. ITO , WARD-3,AMBALA, WHICH I HAVE ADJUDICATED IN FORMER PART OF THIS ORDER, THER EFORE THE FINDINGS GIVEN THEREIN SHALL APPLY MUTATIS MUTANDIS FOR ALL THE CA SES UNDER CONSIDERATION. 17 16. IN THE RESULT, ALL THE ABOVE APPEALS OF THE ASS ESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 30/07/2019 ) SD/- .., ( N.K. SAINI) ! / VICE PRESIDENT AG DATE: 30/07/2019 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE