M. Bensraj and M.D. Santhosh Madathiparambil V. Union of India and State of Sikkim and Director of State Lotteries, Government of Sikkim and Assistant Commissioner of Income Tax Circle-2(1) Kannur

WA/859/2015

AI Insights

The case involves two writ appeals, WA No. 859/2015 and WA No. 1126/2015, filed against the judgment in WPC 17767/2010 and OP 8538/2003 respectively. The appellants, M. Bensraj and M.D. Santhosh Madathiparambil, had won lottery prizes but faced issues with the tax deductions made by the respondents, which they claimed were unauthorized and illegal. The main legal contention was whether the deductions made by the Director of Lotteries, Government of Sikkim, were in accordance with the Income Tax Act, 1961, especially after its extension to Sikkim post-1989. The court examined the applicability of the Sikkim State Income Tax Manual, 1948, in light of the Income Tax Act, 1961, and previous judgments, ultimately finding in favor of the appellants.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 803471 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 04-02-2022
• Assessment Year: misc
• Other Referred Cases: Sikkim Manipal University v. State of Sikkim, Mahaveer Kumar Jain v. Commissioner of Income Tax, Jaipur, Commissioner of Income Tax, Delhi v. Mansarovar Commercial (P) Ltd, Nirmala L Mehta v. A Balasubramaniam, D.P. Choudhury v. Union of India
• Laws Referred To: Income Tax Act 1961, Sikkim State Income Tax Manual, 1948
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH; P SANJAY
• Assessee Lawyers: DALE KURIEN; V MARKOS
• Keywords: Income Tax; Tax deduction at source; TDS Certificate; Lottery Prize Money; Unconstitutional Retention
• Section: 115BB

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 4TH DAY OF FEBRUARY 2022 / 15TH MAGHA, 1943 WA NO. 859 OF 2015 AGAINST THE JUDGMENT IN WPC 17767/2010 OF HIGH COURT OF KERALA APPELLANT/S: M.BENSRAJ, MALABAR HEIGHTS, TALAP, KANNUR 670 002 BY ADV SRI.DALE P.KURIEN RESPONDENT/S: 1 UNION OF INDIA, REP. BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE REP.BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE, NEW DELHI 2 STATE OF SIKKIM REP. BY ITS SPECIAL SECRETARY TO GOVERNMENT, INCOME & COMMERCIAL TAX DIVISION, FINANCE DEPARTMENT, GANGTOK-737 101, SIKKIM. 3 DIRECTOR OF STATE LOTTERIES GOVERNMENT OF SIKKIM, GANGTOK, SIKKIM. 4 THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-2(1) KANNUR 670 001. KERALA STATE BY ADV SRI.JOSE JOSEPH, SC, FOR INCOME TAX OTHER PRESENT: BY ADV.SRI P.SANJAY W.A. Nos. 859 & 1126/2015 -2- THIS WRIT APPEAL HAVING COME UP FOR HEARING ON 04.02.2022, ALONG WITH WA.1126/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. Nos. 859 & 1126/2015 -3- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI FRIDAY, THE 4TH DAY OF FEBRUARY 2022 / 15TH MAGHA, 1943 WA NO. 1126 OF 2015 AGAINST THE JUDGMENT IN OP 8538/2003 OF HIGH COURT OF KERALA APPELLANT/S: M.D.SANTHOSH MADATHIPARAMBIL, CHAMAKALA P.O.,, KOTTAYAM-686 603. BY ADVS. SRI.V.ABRAHAM MARKOS SRI.ABRAHAM JOSEPH MARKOS SRI.BINU MATHEW SRI.ISAAC THOMAS SRI.NOBY THOMAS CYRIAC SRI.TOM THOMAS KAKKUZHIYIL RESPONDENT/S: 1 P.K.LAKSHMANAN SONY MEDICALS, HOSPITAL ROAD,, TELLICHERRY 670 101, KERALA. DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 15.01.2016 IN I.A. 1630/2015 2 THE CHIEF COMMISSIONER OF INCOME TAX C.R.BUILDINGS, I.S.PRESS ROAD, COCHIN. 682 018 W.A. Nos. 859 & 1126/2015 -4- 3 THE DIRECTOR OF LOTTERIES GOVERNMENT OF SIKKIM, BALWAKHANI, GANGTOK-737 101, SIKKIM. 4 THE ASSISTANT COMMISSIONER OF INCOME TAX OFFICE OF THE ASSISTANT COMMISSIONER, BHANUPATH, GANGTOK- 737 101, SIKKIM. 5 THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE -I, OFFICE OF THE COMMISSIONER OF INCOME TAX,, PUBLIC LIBRARY BUILDINGS, SASTRI ROAD,, KOTTAYAM-686 001. 6 UNION OF INDIA REPRESENTED BY THE PRINCIPAL SECRETARY, MINISTRY OF FINANCE, NEW DELHI-110 001. 7 STATE OF SIKKIM REPRESENTED BY ITS SPECIAL SECRETARY, INCOME AND COMMERCIAL TAX DIVISION, FINANCE DEPARTMENT, GANGTOK-737 101. BY ADVS.P.K.RAVINDRANATHA MENON (SR.) JOSE JOSEPH, SC, FOR INCOME TAX; ADV. P SANJAY THIS WRIT APPEAL HAVING COME UP FOR HEARING ON 04.02.2022, ALONG WITH WA.859/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. Nos. 859 & 1126/2015 -5- J U D G M E N T [WA Nos.859/2015, 1126/2015] S.V.Bhatti, J Heard learned Senior Advocate Mr Joseph Markos and Advocate Mr Dale P Kurien for the appellants, Mr P Sanjay, learned Advocate for the State of Sikkim and Director of State Lotteries, Gangtok, Sikkim, and Mr Jose Joseph learned Senior Standing Counsel for the Income Tax Department. 2. The appeals are from the common judgment dated 16.12.2014 in W.P.(C) No.17767/2010 and O.P. No.8538/2003. The petitioners are the appellants. W.A. No.859/2015 has been taken note of, for narration of admitted and undisputed circumstances in the appeals. The counsel would state that reference to the circumstances in one appeal would be sufficient for disposing of both the appeals. The parties are referred to as arrayed in W.P.(C) No.17767/2010. W.A. Nos. 859 & 1126/2015 -6- W.P.(C) No.17767/2010 3. M Bensraj/writ petitioner won first prize amounting to Rs.5,20,00,000/- in the online lottery conducted by the 2nd and 3rd respondents. The 3rd respondent disbursed to petitioner, towards prize money, a sum of Rs.4,68,00,912/-, after withholding a sum of Rs.51,99,088/- towards income tax. The 2nd respondent issued Ext.P1 certificate dated 06.08.2002 to the petitioner. The receipt of Ext.P1 led to correspondence between the petitioner and the 3rd respondent. The 3rd respondent sent reply, which is marked as Ext.P1(D), to the request of petitioner on issuing a TDS certificate in accordance with the Income Tax Act 1961 (for short, 'Act 1961') as follows: \"It is to inform you that in the State of Sikkim Laws relating to Income Tax is governed by Sikkim State Income Tax Manual, 1948. Accordingly, we have issued TDS Certificate in your name and acknowledgement of the same has been confirmed by you. Since the Income Tax Act, 1961 has not yet been implemented in the State of Sikkim the TDS Certificate in form No.16A as requested by you cannot be issued by this Department. You are therefore, suggested to request the Central Income Tax W.A. Nos. 859 & 1126/2015 -7- Authority to grant rebate/exemption to the extent of the amount of TDS or allow to show such amount in your account as expenditure incurred by you.” 3.1 The petitioner, as an assessee within the jurisdiction of 4th respondent, filed Income Tax return for the Assessment Year 2003-04. The Assessing Officer computed the total prize money earned by the petitioner in an online lottery conducted by 2nd and 3rd respondents as a receipt received by the petitioner in the subject Assessment Year. The controversy at the point of time was, the petitioner filed the return by showing Rs.5,20,00,000/- as receipt from other sources. But the petitioner actually received Rs.4,68,00,912/- from the 3rd respondent. The petitioner could not get TDS certificate from the 3rd respondent for the balance amount. The net effect of these circumstances were that the petitioner is taxed at full prize money though the petitioner has not received the prize money or TDS certificate from the 3rd respondent. The petitioner challenged the assessment orders before the authorities W.A. Nos. 859 & 1126/2015 -8- under the Act which led to the final judgment of this Court in I.T.A. No.71/2009, marked as Ext.P5. It is useful to narrate at this juncture of our consideration that, the subject matter of either the writ petition or the writ appeal is limited to Rs.51,99,088/- and the lis is whether the deductions/withholding of said amount is legal or not and whether the 3rd respondent is obligated by law to issue TDS certificate or not to petitioner for the amount deducted at source. The petitioner, stated briefly, has canvassed twin grievances: firstly that the petitioner is being subjected to taxation on unrealised amount, and secondly, the petitioner since is under obligation to file returns under the Act, the deduction amounting to Rs.51,99,088/- towards alleged tax payable by the petitioner and not issuing TDS certificate nor crediting to Union of India is illegal and unconstitutional. The petitioner also stated that respondents be directed to give credit to the TDS effected by respondent nos 2 and 3 and issue a refund of excess tax collected or deemed to have been collected from the petitioner. Though writ petition refers to a few W.A. Nos. 859 & 1126/2015 -9- other prayers, keeping in perspective the discussion we would be undertaking, which is now in a very narrow compass, the other prayers are not adverted to. 3.2 Through the judgment under appeal the learned Single Judge disposed of the matters pending before him and the operative portion reads thus: \"6. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that insofar as it is the specific case of the Income Tax authorities that the amounts, stated to have been deducted by the Director of Lotteries Government of Sikkim from the amounts payable to the petitioners as prize amounts on the Lottery tickets purchased by them, were not credited to the account of the Government of India, the deductions so effected cannot be seen as tax deduction at source for the purposes of the Income Tax Act, 1961. It follows therefore, that the amounts that have been received by the petitioners, after the deductions effected by the Director of Lotteries, the Government of Sikkim have to be taken as the only amounts that were received by the petitioners as prize amounts in respect of the lottery tickets purchased by them. In other words, the amounts actually received by the petitioners after the deductions effected by the Director of Lotteries, Government of Sikkim, will have to be taken as the amounts received by the petitioners for the purposes of Section 115 W.A. Nos. 859 & 1126/2015 -10- BB of the Income Tax Act, 1961. The decision of the Division of this Court referred to above is also to this effect. Accordingly, leaving it open to the Income Tax Authorities to proceed against the Director of Lotteries, Government of Sikkim in terms of the Income Tax Act, 1961, for not deducting tax at source from payments made to the petitioners in the manner contemplated under the Income Tax Act, 1961, if they so choose, I dispose the present writ petitions by making it clear that the assessments of the petitioners, for the assessment years in question, shall be completed by the respondent authorities under the Income Tax Act, by treating only such amounts as coming within the purview of Section 115 BB of the Income Tax Act as have actually been received by them. It is made clear that the amounts deducted by the Director of Lotteries, Government of Sikkim, from payments that were due to the petitioners, shall not be treated as having been received by the petitioners for the purposes of completing their assessments under the Income Tax Act, 1961. If the respondent Income Tax Authorities have not passed consequential orders, pursuant to the judgment of the Division Bench in the case of the petitioners in W.P.(C).Nos. 35274 of 2009 and 17767 of 2010, then they shall do so immediately and at any rate within a period of two months from the date of receipt of a copy of the this judgment after hearing the petitioners. Similarly, in the case of the petitioner in O.P.No.8538 of 2003 the assessments, if any completed against the petitioner in the said case, shall be revised taking note of the findings in this judgment and the revised assessment order, shall be passed within the period W.A. Nos. 859 & 1126/2015 -11- aforementioned. In all cases, if on passing revised assessment orders, it is found that excess amounts have been paid by the petitioners by way of tax, the same shall be refunded to them within a period of one month from the date of passing the revised assessment orders as directed in this judgment.” 4. The appeal is filed for enforcing the statutory duties and functions of respondents under the Income Tax Act and prohibiting respondent nos. 2 and 3 from particularly continuing to retain a sum of Rs.51,99,088/- without conforming to the Act, as deduction is illegal, unconstitutional and without jurisdiction. Respondent nos 2 and 3 claim to have deducted tax in terms of Ext.P1 and the authority is traced to the Sikkim State Income Tax Manual 1948 (for short 'Manual 1948'). In other words, the source for deducting the tax is traced by respondent nos. 2 and 3, to Manual 1948. By notifications of the Central Government No. S.O. 1028(E) dated 07/11/1988 and S.O. 148(E) dated 28.02.1989, the Act 1961 was extended to the State of Sikkim with effect from 01.04.1989 i.e., from the Assessment Year 1989-90. In this background a few legal issues W.A. Nos. 859 & 1126/2015 -12- on the applicability of Manual 1948, with the extension of Act 1961 had arisen in a few cases. Admittedly, in the case on hand the deduction is post 01.04.1989. 4.1 The legal issue in Sikkim Manipal University v. State of Sikkim1 considered by the Division Bench of Sikkim High Court in the reported judgment is the enforceability of Manual 1948 upon the extension and implementation of the Act 1961. The question framed by the Sikkim High Court reads thus: \"Whether after the extension of the Income Tax Act 1961 to the State of Sikkim with effect from 01.04.1990, the Sikkim State Income Tax Manual 1948 stands repealed and the assessments made thereunder for accounting years 1996-97 to 2004-05 (Assessment Years 1997-98 to 2005-06) would be without authority of law?\" 4.2 The Bench, upon considering the history of the State of Sikkim and its merger with the Union of India, held as follows: \"If we examine the situation in light of the principles, referred to above, we find that the provisions of the two enactments are quite 1 (2014) 369 ITR 567 W.A. Nos. 859 & 1126/2015 -13- different and both the enactments cannot stand together. The Income Tax Act, 1961 is exhaustive than the Sikkim State Income Tax Manual, 1948 and, as is clear from the provisions of both the enactments, they occupy the same field relating to levy of income tax and its recovery. Thus, if both the enactments are held to be applicable, it shall create a great anomaly. There is yet an other reason to take this view, that is, if both the statutes are held to be operating in the same field, there would be a situation of existing two laws relating to income tax and in absence of any protection coming forward, the assessees may be subjected to double taxation. It is, thus, clear that on account of the above inconsistencies, the two enactments cannot stand together and we have no hesitation in holding that on extension of the Income Tax Act, 1961, the Sikkim State Income Tax Manual, 1948 was repealed by necessary implication. 18. So far as the arguments relating to estoppel, quoted in Paragraph 4 (supra), raised by Learned Additional Advocate General is concerned, we may note that estoppel is a rule of evidence which bars a party from denying or alleging certain facts owing to his/its previous conduct, allegation, or denial. It is well settled that there could not be estoppel against the statutes. One cannot be prevented by any estoppel from ascertaining his rights under a particular Act/statute so long the said Act/statute continues to be the law in force. There may be many reasons like wrong advice, ignorance, confusion or not correctly understanding the law or the rights, for a party to take pleadings against his rights under the Act or statute, W.A. Nos. 859 & 1126/2015 -14- which he/it can always correct either in the same proceeding or in any subsequent proceeding and take a plea according to his/its rights under the Act/statute. *** **** *** 22. In the instant case, we have already held that the Sikkim State Income Tax Manual, 1948 stood repealed after extension of the Income Tax Act, 1961 in the State of Sikkim with effect from W.P. (C) No.30 of 2013 Sikkim Manipal University vs. State of Sikkim & Ors. 01.04.1990. The Petitioner has come claiming its rights as an assessee under the Income Tax Act, 1961. Therefore, any adverse plea like it was not an assessee under this Act or that the Income Tax Act, 1961 was not applicable to the Petitioner, being a plea relating to the statute would not operate as estoppel against it and the arguments advanced by the Additional Advocate General is to be rejected.” 5. The declaratory relief on the applicability of Manual 1948 has a direct bearing, both on the defence pleaded by respondent nos 2 and 3 and also the legal principle involved in the matters. Put it otherwise, the withholding of Rs.51,99,088/- whether is lawful and/or under the authority of applicable law is examined in the light of the declaratory relief granted in Sikkim Manipal University case. In the case on hand, the Assessment Year is W.A. Nos. 859 & 1126/2015 -15- 2003-04, subsequent to the coming into force of Act 1961 in the State of Sikkim. The Supreme Court in Mahaveer Kumar Jain v. Commissioner of Income Tax, Jaipur2 considered the cut-off date for applicability of Manual 1948 or applicability of Act 1961. The relevant paragraph reads thus: \"On a plain reading of this provision, it becomes clear that all laws which were in force prior to April 26, 1975, in the territories now falling within the State of Sikkim or any part thereof were intended to continue to be in force until altered or repealed. Therefore, the law in force prior to the merger, continued to be applicable. As a matter of fact, the IT Act was made applicable only by Notification made in 1989 and the first assessment year would be 1990-91 and by the application of this Act, the Sikkim State Income Tax Manual, 1948 stood repealed. However in the present case, we are concerned with the assessment year 1986-87, and, during this time, the IT Act had not been made applicable to the territories of Sikkim. The law corresponding to the IT Act, which immediately was in force in the relevant State was Sikkim State Income Tax Rules, 1948. Hence, there can be two situations, first is that the person was a resident of Sikkim during the time period of 1975-1990 and the income accrues and received by him there only. In such a case, no question of applicability of the IT Act arises. However, the problem arises where the income accrues to a person from the State of Sikkim who was 2 (1969) 72 ITR 291 W.A. Nos. 859 & 1126/2015 -16- not a resident of Sikkim but of some other part of India. The question that arises is whether the provisions of the IT Act are applicable to such income and whether the same can be subjected to tax under the said Act especially in light of the fact that the income has already been subjected to tax under the Sikkim State Income Tax Rules, 1948.” Similar view is taken by other High Courts, viz: The Delhi High Court in Commissioner of Income Tax, Delhi v. Mansarovar Commercial (P) Ltd3, the Bombay High Court in Nirmala L Mehta v. A Balasubramaniam4, and the Calcutta High Court in D.P. Choudhury v. Union of India5 on the effect of repeal of Manual 1948 and effect of extension of Act 1961. 6. We would consider the effect of declaratory relief granted in Sikkim Manipal University case and the effect of repeal considered by the Supreme Court in Mahaveer Kumar Jain case and whether the retention of Rs.51,99,088/- by respondent nos. 2 and 3 is legal and sustainable. The precedents relied by the counsel for petitioners on the questions involved in the cases on hand are not 3 Judgment dated 22.02.2016 in ITA 162/2002 and connected cases 4 2004 269 ITR 1 Bom. 5 1990 186 ITR 329 W.A. Nos. 859 & 1126/2015 -17- contested by the respondents and the precedents hold the field as on date. The consequence thereof is that the declaratory relief on Manual 1948, has the effect of rendering the deduction/withholding Rs.51,99,088/- as illegal, unauthorised, and unconstitutional. The above discussion takes us to the next aspect, namely what is the relief to which the respective petitioners are entitled to in the cases on hand, and whether the 2nd and 3rd respondents be directed to return or refund Rs.51,99,088/- to petitioner in W.P.(C) No.17767/2010 and Rs.34,89,088/- to petitioner in O.P. No.8538/2003, or, keeping in view the law declared by Mahaveer Kumar Jain case and Sikkim Manipal University case, whether 2nd and 3rd respondents be directed to treat the money retained/deducted by them as tax deducted at source and issue Form 16A certificate to the respective assessees to enable the completion of assessments in the returns already filed by them. 7. Mr Joseph Markos and Mr.Dale P.Kurien have objectively assisted the Court in moulding the relief in the Writ Petitions. It is W.A. Nos. 859 & 1126/2015 -18- stated that presently the Income Tax return filing procedure and the mechanism of assessment are completely computerized. The amounts are refunded, then the petitioners would be subjected to a few unexpected and unforeseen consequences from the assessment orders, inspite of no omission on their part. The refund of amount to petitioners may not be the first practical and feasible option. The assessees have, at the first instance, declared the total prize money as income from other sources. However, in view of the decision of this Court in I.T.A. No.71/2009, income from other sources has been restricted to Rs.4,68,00,912/- and and Rs.3,14,10,912/- and thereon the tax payable by the petitioners has been decided. The very act of deducting the amount at source is unauthorised and illegal, the petitioners are entitled to refund of amount together with interest for denying timely and rightful enjoyment of the prize money. In such an eventuality, the petitioners would be advised to submit a return and/or pay additional income tax on the amount now received from the respondents and this would also lead to W.A. Nos. 859 & 1126/2015 -19- unforeseen problems and invite penalties on petitioners and respondent nos. 2 and 3. On the contrary, respondent nos. 2 and 3 are directed to comply with the requirements of Act 1961, account for and deposit the amount retained with the Income Tax Department and issue Form 16A certificate to petitioners, then the petitioners are enabled to submit the tax deducted at source certificate before the Assessing Officer and a revised assessment order by referring to the judgment of this Court could be made by the assessing officer. If at all amount is directed to be refunded, it is argued the reasonable rate of interest could be 8% from the date of retention till the date of repayment. In effect, the learned counsel have left it to the Court to mould the relief by keeping in perspective all the circumstances and that the prayers are moulded nearly after 17 years from the date of cause of action. 8. Mr Sanjay, in reply, argues that a direction to refund the amount with interest is uncalled for and that by keeping in perspective the declaration on the applicability of Manual 1948 by W.A. Nos. 859 & 1126/2015 -20- the High Court of Sikkim, necessary directions could be issued in the cases on hand which would conform to Act 1961.. 9. Mr Jose Joseph states that the assessment has been completed by referring to the orders made either by the Tribunal or this Court in the matters. Therefore, whatever further directions are issued in this behalf either an effect or consequential order would be made or a revised assessment order is issued by the jurisdictional Assessing Officer. 10. We have taken note of the arguments of the counsel appearing for the parties on moulding the relief at this juncture. Having given our due consideration to the admitted circumstances and the law declared by the High Court of Sikkim, the Writ Appeals stand allowed in the following terms: i) By this judgment we declare that the retention/deduction of Rs.51,99,088/- and Rs.34,89,088/- in W.P.(C) No.17767/2010 and O.P. No.8538/2003 respectively is illegal, unconstitutional and unauthorised. W.A. Nos. 859 & 1126/2015 -21- ii) Respondents 2 and 3 hence are under legal obligation, either to conform to the requirements of Act 1961 or relieve themselves by refunding the unauthorised amounts deducted from respective petitioners. 10.1 Further directions are issued, keeping in perspective the above declaratory reliefs, as follows: (iii) For the reasons and the view we have taken, the amount retained by respondent nos. 2 and 3 shall be treated as tax deducted at source and certificate in Form 16A is issued within six weeks from the date of receipt of a copy of this judgment to respective petitioners. (iv) The petitioners, within six weeks from the date of receipt of Form 16A from respondent nos 2 and 3, are to enclose a copy of this judgment and Form 16A, request the jurisdictional Assessing Officer to revise the assessment order. (v) Jurisdictional Assessing Officer is directed to revise the assessments within eight weeks thereafter, by taking note of Form W.A. Nos. 859 & 1126/2015 -22- 16A issued by the 3rd respondent. Ultimately it is held and decided in the revised assessment that the respective petitioners are entitled to refund. Refund is given effect within four weeks thereafter. (vi) Respondent nos 2 and 3 fail to comply with the above direction, this Court is of the view that having given the relief of declaration that the amount retained by respondents as illegal and unconstitutional, alternatively considers it appropriate to issue further and consequential directions as would meet the ends of justice. Hence, in default of complying with directions referred to in 10.1, respondent nos. 2 and 3 shall return the amount deducted at source to respective petitioners together with interest at 6% per annum from the day on which the amount is retained/deducted till the day of repayment. (vii) The steps now being taken by the jurisdictional Assessing Officer shall be pursuant to and in continuation of the declaratory relief granted by this judgment. In other words, the assessment is W.A. Nos. 859 & 1126/2015 -23- confined only to the income tax payable and penal interest etc are not to be taken into consideration, as an exceptional or singular case, against any of the parties. (viii) The order under appeal is modified to the extent indicated above. Sd/- S.V.BHATTI JUDGE Sd/- BASANT BALAJI JUDGE jjj W.A. Nos. 859 & 1126/2015 -24- APPENDIX OF W.A 859/2015 APPELLANT'S ANNEXURES ANNEXURE A TRUE COPY OF THE JUDGMENT REPORTED IN (2005) 277 ITR 166 (RAJ) CITED MAHAVEER KUMAR JAIN V. COMMISSIONER OF INCOME TAX ANNEXURE B TRUE COPY OF THE CONSEQUENTIAL ORDER OF ASSESSMENT PASSED BY THE 4TH RESPONDENT ASSESSING OFFICER "