C/SCA/1084/2020 JUDGMENT DATED: 09/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1084 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 1084 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MUKESHKUMAR RAMANLAL DESAI
Versus
STATE OF GUJARAT
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Appearance:
MR VIJAY N RAVAL(2025) for the Petitioner(s) No. 1,2
MR SIDDHARTH RAMI, AGP for the Respondent(s) No. 1, 2
MR MG NAGARKAR(496) for the Respondent(s) No. 3
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CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 09/03/2023
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI)
1. Rule returnable forthwith. Mr. Siddharth Rami, learned Assistant Government Pleader waives service of notice of Page 1 of 4 Downloaded on : Fri Mar 10 20:45:27 IST 2023 C/SCA/1084/2020 JUDGMENT DATED: 09/03/2023 Rule for and on behalf of respondent Nos.1 and 2, while Mr. M.G. Nagarkar, learned counsel waives service of notice of Rule for and on behalf of respondent No.3 - Gujarat Industrial Development Corporation.
2. With the consent of the learned advocates for the respective parties, this petition is taken up for hearing today together with Civil Application.
3. By way of present petition, under Articles 14 and 226 of the Constitution of India, the petitioners whose lands were acquired by the respondent - Corporation were paid compensation, however, by deducting the amount of income tax known as Tax Deducted at Source (for short, hereinafter referred to as `TDS'). It is the case of the petitioners that the amount deducted as TDS is contrary to law and contrary to the judgment passed by the Division Bench of this Court in the case of Movaliya Bhikhubhai Page 2 of 4 Downloaded on : Fri Mar 10 20:45:27 IST 2023 C/SCA/1084/2020 JUDGMENT DATED: 09/03/2023 Balabhai v. Income Tax Officer (TDS) reported in 2016(388), ITR 383 (Guj.).
4. During the pendency of the present petition, the amount of TDS which was deducted has already been paid to the original petitioners.
5. We have gone through the Oral Judgment dated 28.8.2017 passed by the Coordinate Bench this Court in Special Civil Application No.13528 of 2017 in the case of Punjbhai Surigbhai Khavad v. Executive Engineer, by which, relying upon the decision of this Court in case of Movaliya Bhikhubhai Balabhai (Supra) has held that the authority cannot deduct the TDS when the amount is paid as compensation for acquisition. Hence, the petition requires consideration.
6. In view of above, the petition is allowed. However, it is Page 3 of 4 Downloaded on : Fri Mar 10 20:45:27 IST 2023 C/SCA/1084/2020 JUDGMENT DATED: 09/03/2023 made clear that on return of the aforesaid amount to the petitioners, the petitioners shall not claim any refund from the Income Tax Department. It will always be open for the respondent to get the refund of the aforesaid amount from the Income Tax Department by submitting appropriate / necessary form No.26B under Rule 31A(3A) of the Income Tax Rules and the authority may refund the said amount as early as possible, preferably within a period of three months from the date of such application.
7. Rule is made absolute to the aforesaid extent. No order as to costs.
8. In view of allowing of the main matter, no orders on Civil Application.
(A.J.DESAI, ACJ) (BIREN VAISHNAV, J) VATSAL Page 4 of 4 Downloaded on : Fri Mar 10 20:45:27 IST 2023