Jagabhai Bhagabhai Baria vs State Of Gujarat
2021 Latest Caselaw 18329 Guj

    C/SCA/21644/2019                             JUDGMENT DATED: 13/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 21644 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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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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                       JAGABHAI BHAGABHAI BARIA
                                 Versus
                          STATE OF GUJARAT
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Appearance:
MS MEDHA H PATEL(10907) for the Petitioner(s) No. 1
MR. BHARAT VYAS, AGP (1) for the Respondent(s) No. 1,2
MR HS MUNSHAW(495) for the Respondent(s) No. 4
NOTICE SERVED(4) for the Respondent(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                             Date : 13/12/2021

                            ORAL JUDGMENT

1. RULE. Learned AGP Mr. Bharat Vyas waives service of

notice of rule for and on behalf of the respondent - State and

learned advocate Mr. H. S. Munshaw waives service of notice

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of rule for and on behalf of the respondent no. 4.

2. By way of this petition, the petitioner has prayed for the

following reliefs:-

(a) This Hon'ble Court be pleased to admit and allow the present petition;

(b) This Hon'ble Court be pleased to issue writ of or in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned judgment and order dated 30.03.2019 passed by the learned Principal Senior Civil Judge, Bodeli, Dist. Chhota Udepur in Execution Petition No.09 /2018 and the Execution Petition be allowed with costs;

(c) That pending admission,final hearing and disposal of this petition, this Hon'ble Court be pleased to stay execution, operation and implementation of the impugned judgment and order dated 30.03.2019 passed by the learned Principal Senior Civil Judge, Bodeli, Dist. Chhota Udepur in Execution Petition No.09 /2018 and further be pleased to direct the respondents to deposit the difference amount of award in the accounts of the petitioners;

(d) That ex-parte ad interim relief in terms of the aforesaid prayer clause be granted;

(e) This Hon'ble Court be pleased to grant any other and further relief as deemed fit and expedient by this Hon'ble Court in the interest of justice.

3. As the issue is only in respect of the fact that while making the

payment of amount of compensation whether the State

Authorities can deduct the amount of TDS from the amount of

compensation or not, which is agitated by way of this petition

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and as learned advocate Mr. Jinesh Kapadia for learned

advocate Ms. Medha H. Patel for the petitioner has drawn the

attention of this Court that the issue is squarely covered by the

judgment of Division Bench of this Court in Special Civil

Application No. 13528 of 2017 decided on 28.08.2017, this

petition is taken up for hearing with the consent of learned

advocates for the parties.

4. Heard learned advocate Mr. Jinesh Kapadia for learned

advocate Ms. Medha H. Patel for the petitioner, learned AGP

Mr. Bharat Vyas for the respondent - State and learned

advocate Mr. H. S. Munshaw for the respondent no.4. Though

served no-one appears for the respondent no. 3.

5. Brief facts giving rise to the present petition are stated as

under:-

The present petitioner's land was acquired for the purpose

of construction and rehabilitation of ousters under the

Narmada Canal Project and the Land Reference Case No.

2003 of 2000 was preferred by the present petitioner for

enhancement of the compensation. The Additional Senior

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Civil Judge, Vadodara vide judgment and order dated

11.12.2009 partly allowed the Land Reference Cases. The

petitioner - original claimant therefore was held entitled to

get the additional market price of his acquired land at the

rate of Rs. 21.48 along with 30% solatium and interest.

Against the aforesaid judgment and order dated 11.12.2009,

the acquiring body i.e. Executive Engineer, Narmada

Project Rehabilitation preferred First Appeal No. 2157 of

2010 before this Court and this Court vide order dated

30.07.2010 admitted the appeals. This Court in the Civil

Application for stay vide order dated 30.07.2010 issued rule

and granted stay against the execution and implementation

of the judgment and order of the Reference Court by

imposing condition that the entire amount awarded to be

deposited before this Court within a stipulated time.

Thereafter, the acruiring body - Narmada Project

Rehabilitation preferred a Civil Application for

modification of the order dated 30.07.2010 which was

dismissed by this Court vide order dated 29.09.2010.

It seems that thereafter, the present respondent

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acquiring body could not deposit the amount as directed by

this Court while granting the stay and admitting the First

Appeal vide order dated 30.07.2010 and therefore,

Division Bench of this Court vide order dated 25.10.2010

disposed of the Civil Application (for stay) and in the order,

this Court has observed that since the applicant has not

deposited the amount as per condition, ad interim order

stood automatically vacated and further observed that

original claimant shall be at liberty to move the Executing

Court for execution of the judgment and award passed by

the Reference Court.

The Narmada Project Rehabilitation Agency

challenged the aforesaid order of the Division Bench of this

Court passed in Civil Application No. 8361 of 2010 and

other allied matters before the Hon'ble Supreme Court by

way of Special Leave to Appeal (Civil) No. 31983 - 31992

of 2010 and the Hon'ble Supreme Court dismissed the

aforesaid Special Leave to Appeal vide order dated

26.11.2010 and issued following directions:-

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"(i) The Special Land Acquisition Officer shall depute an official working under him to go to the concerned village, contact the respondent- land owners and get bank accounts opened in their names in case any or some of them do not already have such account. This shall be done within 6 weeks from today.

(ii) Within next 6 weeks, the amount due to the respondents shall be deposited in their bank accounts in the form of banker's cheque.

(iii) The payment of compensation to the land owners in the form of banker's cheque shall remain subject to final adjudication of the appeals pending before the High Court."

Pursuant to the aforesaid directions, though the

accounts of the petitioners were opened by the respondent

after depositing the amount of compensation, those

accounts were freezed by the acquiring body.

Hence, the present petitioner preferred an application

for contempt being Contempt Petition (Civil) No. 317 - 326

of 2011 before the Hon'ble Supreme Court. However,

subsequently on the basis of the statement made by the

learned advocate for the acquiring body the account was de-

freezed.

Thereafter, an application was made for correction of

the award by acquiring body but however the same was

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rejected in the year 2011. On 02.08.2011 the Special Land

Acquisition Officer informed the advocate for the petitioner

that as the appeals are pending before this High Court, the

amount of award could be paid by deducting TDS only and

since, the matter was subjudice at that point of time, no

separate account towards deposit of TDS could be opened

and hence, the TDS certificate could not be issued in favour

of the present petitioner.

Thereafter, the appeals preferred by the State

Government against the judgment and order dated

11.12.2009 by the Reference Court were heard by the

Division Bench of this Court and vide CAV judgment dated

01.05.2014 in First Appeal No. 231 of 2012 and other allied

matters (First Appeal No. 2157 of 2010 was also a part of

this group), this Court allowed the first appeals preferred by

acquiring body as well as State Government and the

judgment and order dated 11.12.2009 passed by the Civil

Judge, Vadodara in Land Reference Cases were quashed

and set aside and it was held that the respective land

reference at the instance of claimants under Section 18 of

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the Land Acquisition Act were not maintainable.

The present petitioner and other claimants being

aggrieved by the CAV judgment and order dated

01.05.2014 passed by the Division Bench of this Court in

First Appeal No.231 of 2012 and other allied matters,

preferred Special Leave Petition being Special Leave

Petition No.21067 - 21069 of 2014 wherein vide order

dated 16.11.2017, the Hon'ble Supreme Court quashed and

set aside the judgment passed by the High Court and

restored the judgment and award passed by the Reference

Court by allowing the appeals.

Even, after the Hon'ble Supreme Court allowed

the appeal preferred by the claimants, since, the acquiring

body did not deposit the exact amount as per the award in

the account of the petitioner and deducted the amount of

TDS and even TDS certificate was not issued in favour of

the petitioner, the petitioner preferred Acquisition

Application which was numbered as Land Reference

Darkhast No. 9 of 2018.

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6. In the aforesaid Execution Application, learned advocate Mr.

Jinesh Kapadia, today, stated at bar that though the petitioner

has never raised any issue in respect of the section 23 (1 -A) of

the Land Acquisition Act, the learned Judge misunderstood the

submissions of the petitioner and decided the aforesaid

acquisition application on the basis of two points about the

deposit of TDS and about non granting the benefits under

section 23 (1-A) of the Land Acquisition Act and ultimately

dismissed the application preferred for execution of the order

below Exh. 1 dated 30.03.2019 by the Principal Senior Civil

judge, Bodeli, District:- Chhota Udepur, Gujarat and hence,

the aforesaid order is under challenge by way of this petition.

7. Learned advocate Mr. Jinesh Kapadia for the petitioner

submits that the observations made in the impugned order by

the learned Principal Senior Civil Judge about petitioner

agitating the issue related to section 23 (1 -A) is misconceived.

At no point of time, such challenge was ever made and in fact

the petitioner wanted grant of the benefits as per the schedule

provided under the Land Acquisition Act and nothing beyond

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that and therefore, though he challenges the order dated

30.03.2019 passed below Exh. 1 in Acquisition Application

No. 9 of 2018, he only confines his challenge in respect of the

non issuance of TDS certificate and deduction of amount of

TDS from the amount of award and prays that his challenged

be considered as only against the amount of deduction of TDS

and interest thereon and in respect of an interest for a period

during which his account was freezed.

8. In view of the aforesaid challenge, the learned advocate Mr.

Kapadia for the petitioner submits that his case is squarely

covered by the judgment of Division Bench of this Court

passed in Special Civil Application No.13528 of 2017 decided

on 28.08.2017 and more particularly relying upon the

observations made in paragraph nos. 4 to 7, learned advocate

Mr. Kapadia for the petitioner submits that it is not open for

the respondent authorities to deduct the amount of TDS and if

the same is deducted by the respondent authorities, the

respondent authorities is required to pay the interest also on

the aforesaid amount.

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9. As far as Mr. Jinesh Kapadia for the petitioner challenge to the

interest on the period during which the account of the

petitioner was freezed is concerned, learned advocate Mr.

Kapadia draws the attention of this Court to the order dated

09.08.2021 passed by the Coordinate Bench of this Court

which reads as under:-

"The matter was argued for sometime. During the course of arguments, Mr.Jignesh Kapadia, learned advocate appearing for the petitioner submitted that the grievance of the petitioner is two fold; (i) the interest for the period from January, 2011 to September, 2011 when the amount of compensation though deposited by the respondent, the bank account of the petitioner was freezed and that is how the petitioner could not avail of the benefit of the deposited amount. Since the petitioner was deprived of such amount, the respondents are obligated to pay the interest on that amount inasmuch as, as per the directions contained in the judgment dated 11th December, 2009, the petitioner, is entitled to interest at the rate of 9% per annum from the date of taking over the possession and thereafter at the rate of 15% per annum till its realization. It is submitted that the amount can be realized only when the account of the petitioner was defreezed; and (ii) refund of the TDS amount, which aspect is covered by the judgment in the case of Punjbhai Surigbhai Khavad versus Executive Engineer, rendered in Special Civil Application No.13528 of 2017.

Ms.Dharitri Pancholi, learned Assistant Government Pleader, to take instructions as regards the payment to the petitioner, as per the schedule and more particularly, the direction contained at page 23 of the judgment dated 11th December, 2009.

At the request, let the matter appear on 17th August, 2021."

10. By referring to the aforesaid order dated 09.08.2021,

C/SCA/21644/2019 JUDGMENT DATED: 13/12/2021

learned advocate Mr. Kapadia draws the attention of this Court

to the order dated 16.11.2021 wherein in paragraph no. 2 and

2.1 , this Court has observed as under :-

"2. Learned Advocate Mr.Kapadia submits that issue agitated by way of this petition is covered by judgment dated 28.08.2017 by the Division Bench of this Court in Special Civil Application No.13528 of 2017. He submits that another grievance of the petitioner is partly redressed by the respondent authorities by way of a decision in the form of communication dated 31.08.2021 whereby the Special Land Acquisition Officer, Narmda Yojna, Vadodara has taken a decision to pay the interest during the period during which bank account of the petitioner remained freezed for a period from 04.02.2011 to 06.09.2011 and, therefore, now the only issue that remains before this Court for determination is about an amount of TDS which is deducted from the compensation awarded to the petitioner and also the amount of interest at the rate of 9% from the date on which the possession of the land was taken over for the first year and for subsequent period the interest would be at the rate of 15% on the amount of compensation awarded in the year 2009 as per the award.

2.1 He submits that he will file short affidavit clearly stating about the grievance that needs to be redressed by this Court and also will provide calculation of amount as per the entitlement of the claim. He submits that copy of the affidavit that may be filed by him will be supplied to other side well in advance so as to enable learned Assistant Government Pleader to go through the same and cross-check the facts. He, therefore, requests for time upto 26.11.2021 and submits that affidavit along with calculation shall be filed and copy of the same would be served to the office of the Government Pleader latest by 22.11.2021. Time is granted. Stand over to 26.11.2021."

11. Learned advocate Mr. Kapadia for the petitioner submits

that pursuant to the order dated 16.11.2021, he has already

given calculation and the calculation provided by the learned

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advocate Mr. Kapadia for the petitioner shows that as per the

calculation made by the claimants a total amount of

Rs.13,87,683/- is due and payable to the petitioner.

12. In view of the aforesaid calculation as well as settled

proposition of law, learned advocate Mr. Kapadia prays for

allowing the petition by issuing suitable direction to the

respondents about making payment of the aforesaid amount at

the earliest and prays for appropriate amount to the petitioner.

13. Per contra, learned AGP Mr. Bharat Vyas for the

respondent submitted that as far as the interest on payment of

the amount during the period for which the account of the

petitioner remained freezed is concerned that issue is already

considered by the State Government and vide communication

dated 31.08.2021 and it is decided that from the period of

04.02.2011 to 06.09.2011, the petitioner is entitled to the

interest on the amount of compensation.

14. From the calculation it is pointed out by the learned

AGP Mr. Vyas that as per the calculation provided by the

petitioner and submits that the petitioner is not entitled to any

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interest on the amount of TDS which is already deposited by

the present respondents and as the amount has already been

deposited by the respondents in the Income Tax Department,

the respondents have not earned any interest on the aforesaid

amount and therefore, there is no question of payment of any

interest on the amount of TDS deducted for the petitioner.

However, learned AGP Mr. Vyas could not dispute the ratio

laid down by the Division Bench's judgment about the refund

of the amount of the TDS which is already paid by the

respondent to the Income Tax Department and which is

required to be refunded in favour of the petitioner of that

petition.

15. I have gone through the material on record and

considering the submissions advanced by learned advocate Mr.

Jinesh Kapadia for the petitioner and learned AGP Mr. Bharat

Vyas for the respondent - State only issue that now remains is

whether the amount of TDS which the respondents have

already deducted while making the payment of amount of

compensation in favour of the present petitioner, whether the

petitioner is entitled to the aforesaid amount which is deducted

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by the respondents or they are required to be directed to claim

the aforesaid amount from the Income Tax Department by

filing an appropriate application.

16. The aforesaid issue which is agitated by the present

petitioner was also subject matter and issue in Special Civil

Application No. 13528 of 2017 and while deciding the same

vide judgment dated 28.08.2017, the Division Bench of this

court observed as under:-

"4.00. It is the case on behalf of the petitioner that though no TDS was required to be deducted from the amount of interest under section 28 of the Land Acquisition Act awarded for the acquired land, acquired under the provisions of the Land Acquisition Act, 1894 and despite the direct decision of the Division Bench of this Court in the case of Movaliya Bhikhubhai Balabhai Versus Income Tax Officer (TDS), reported in (2016) 388 ITR 383 (Guj.), the respondent has deducted total sum of Rs.37,82,000/- being 20% towards income tax and therefore, it is requested to direct the respondent to return the amount of Rs.37,82,000/- wrongly deducted by the respondent towards TDS.

5.00. Mr.Hardik Vora, learned Assistant Government Pleader appearing on behalf of the respondent has submitted that, as such, there was a bonafide error on the part of the respondent in deducting the aforesaid amount of Rs.37,82,000/- being 20% towards income tax and in depositing the same with the Income Tax Department. Therefore, he has submitted that either the petitioner - claimant may be directed to approach the Income Tax Department for refund and/or get credit of the amount of tax so deducted and/or the respondent may be permitted to get refund from the Income Tax Department and thereafter the respondent may pay the same to the claimant.

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6.00. Having heard the learned advocates appearing on behalf of the respective parties and considering the direct decision of the Division Bench of this Court in the case of Movaliya Bhikhubhai Balabhai (supra) and as such, it is not in dispute that on the amount of compensation / interest under section 28 of the Land Acquisition Act, on enhanced compensation, income tax was not liable to be deducted and therefore, TDS ought not to have been and/or could not have been deducted by the respondent - Special Land Acquisition Officer and/or ought not to have been deposited with the Income Tax Department. As such, the learned Assistant Government Pleader has candidly conceded that the amount of 20% of the amount of compensation was wrongly deducted towards TDS, however, according to him, the same was a bonafide mistake on the part of the respondent - Special Land Acquisition Officer.

6.01. In view of the aforesaid facts and circumstances and more particularly considering the decision of the Division Bench of this Court in the case of Movaliya Bhikhubhai Balabhai (supra), action of the respondent in deducting 20% TDS of the amount of compensation and/or interest under section 28 of the Land Acquisition Act on the enhanced amount of compensation cannot be sustained and the same deserves to be quashed and set aside and is hereby quashed and set aside.

6.02. Now, the next question which is posed for consideration of this Court is, what relief the petitioner is entitled to. Whether the respondent may be directed to first pay the amount of income tax which the respondent has wrongly deducted and deposited with the income tax department or the claimant may be relegated to approach the Income Tax authority or the respondent be directed to pay the said amount to the claimant after the respondent gets refund from the Income Tax Department.

6.03. It is required to be noted that as such while depositing the amount of income tax with the Income Tax Department, PAN Number of the petitioner has not been stated and therefore, as such, the amount so deducted could not have been credited in the account of the petitioner. Therefore, the petitioner may not be relegated to approach the Income Tax Department for refund of the amount which has been wrongly deducted by the respondent towards income tax and for which the petitioner - agriculturist / farmer is not at all at fault. On the other hand, if the amount of income tax is wrongly deducted by the respondent and wrongly deposited with the Income Tax Department by the respondent, in that case, it will always be open for the respondent to get the refund of such amount by filling Form No.26B under Rule

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31A(3A) of the Income Tax Rules.

6.04. Under the circumstances, while allowing the present petition, the respondent department is to be directed to first refund / return the amount of Rs.37,82,000/- which the respondent has wrongly deducted towards income tax and deposited with the Income Tax Department and thereafter, it will be open for the respondent to apply for refund of the income tax which the respondent has wrongly deducted and deposited with the Income Tax Department.

7.00. In view of the above and for the reasons stated above, present petition succeeds. The respondent is hereby directed to return the amount of Rs.37,82,000/- to the petitioner, which the respondent has wrongly deducted towards income tax on amount of interest under section 28 of the Land Acquisition Act on enhanced compensation and wrongly deposited with the Income Tax Department, to be returned / refunded to the petitioner within a period of four weeks from today, failing which, it shall carry interest at the rate of 9% per annum.

It is made clear and as stated by Mr.Amin, learned advocate appearing on behalf of the petitioner, that on return of the aforesaid amount to the petitioner by the respondent, the petitioner shall not claim any refund from the Income Tax Department. It will always be open for the respondent to get refund of the aforesaid amount from the Income Tax Department by submitting appropriate / necessary form more particularly

C/SCA/13528/2017 JUDGMENT Tax Rules and as when such an application is made, concerned officer / authority of the Income Tax Department to consider the same in accordance with law and on merits and return / refund the said amount as early as possibly and preferably within a period of three months from the date of such application.

Rule is made absolute to the aforesaid extent. No costs."

17. As the Division Bench of this Court has specifically

observed that there is no question of deduction of income tax

from the amount of compensation payable to the petitioners

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and in fact as the Division Bench directed the authority to pay

the amount of TDS which they had deducted to the petitioner

within a period of four weeks from the date of the order and

considering the fact that learned AGP Mr. Vyas could not

point out as to how that order is not applicable in the present

set of facts as well and why such similar directions should not

be given in favour of the present petitioner, this Court is of the

view that the respondents have wrongly deducted the amount

of TDS while making the payment of amount of compensation

in favour of the petitioner and accordingly, the amount of TDS

Rs. 4,11,356.53/- deducted by the respondent be refunded to

the petitioner within a period of 8 weeks from today and if the

amount is not paid within a period of 8 weeks from today, in

that case it shall carry interest at the rate of 6% from the date

of receipt of this order till actual payment is made.

18. As regards the second issue about the freezing of the

account and during that period entitlement of the petitioner for

interest is concerned, since, the State Government has already

decided that the petitioner is entitled to interest for the

aforesaid period, the said issue is not adjudicated by way of

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this petition on the ground that for that period, according to

learned advocate Mr. Kapadia, the interest payable to the

petitioner is Rs. 1,36,868.12 whereas as per the affidavit filed

by the respondent - State dated 09.12.2021 affirmed by one

Maitridevi Nishkamkumarsinh Sisodiya, Special Land

Acquisition Officer, Narmada Project, Vadodara, the

petitioner's entitlement for the interest for the aforesaid period

at the rate of 15% comes to Rs.1,31,643/-. Therefore, there is

approximate difference of Rs.5000/- between the calculation

made by the State Government and calculation made by the

present petitioner.

19. At this juncture, learned advocate Mr. Kapadia for the

petitioner submits, upon instruction of his client that petitioner

is ready and willing to accept the amount of Rs. 1,31,643/-

towards the interest of at the rate of 15% period from

04.02.2011 to 06.09.2011 and therefore, now there is no

dispute in respect of any amount for the period from

04.02.2011 to 06.09.2011.

20. Similarly it is the case of the State Government that as

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the amount of TDS was deposited before the Income Tax

Department, they have not earned any interest at present and

therefore, there is no question of making any payment of

interest towards the amount which the State Government has

already deposited before the Income Tax Department and

therefore, the petitioner is not entitled to an amount of

Rs.6,29,882.64/- towards interest on TDS amount from

09.09.2011 to 25.11.2021 at the rate of 15%.

21. In support of the submission, learned AGP Mr. Vyas

points out to the observations made by the Division Bench of

this Court, in the very case which is heavily relied upon by the

learned advocate Mr. Kapadia that the Division Bench in that

matter also had only issue directions for refund of the amount

which was deducted towards TDS and question of interest

would come only if the aforesaid amount is not paid within a

stipulated period as it appropriate by this Court.

22. Hence, learned advocate Mr. Kapadia also gives up his

claim on the interest on the amount which was deposited

towards TDS by the State Government and which according to

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learned advocate Mr. Kapadia is Rs.6,29,882.64.

23. At this juncture, learned advocate Mr. Kapadia for the

petitioner submits that the amount of Rs.1,31,643-/ which he

has accepted towards the interest during which his bank

account remain freezed from 04.02.2011 to 06.09.2011,

however, from 06.09.2011 to till 25.11.2021 also the aforesaid

amount has remained with the State Government and any

subsequent amount till the date of payment also will remain

with the State Government and therefore, as per the calculation

amount comes to Rs.2,09,576.97/-. However, he submits that

instead of calculating that amount exactly that at the rate of

interest at that time direction be given that for a period from

06.09.2011 till its actual realization an amount of

Rs.1,31,643/- shall carry at the rate of 6% interest till the date

of realization. At this juncture, submissions of learned

advocate Mr. Kapadia seems to be reasonable and therefore, it

is directed to the State Government that the amount of Rs.

1,31,634/- also will carry an interest at the rate of 6% from

06.09.2011 till its actual payment is made to the petitioner.

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24. Accordingly, respondent authorities are directed to pay

the petitioner an amount of Rs. 4,11,356.53 deducted towards

TDS plus an amount of Rs.1,31,643/- towards interest for a

period from 04.02.2011 to 06.09.2011, the period during

which account of the petitioner remained freezed.

25. The respondent authorities are directed to make payment

of the aforesaid amount to the petitioner within a period of 8

weeks from the date of receipt of this order, failing which, the

aforesaid amount shall carry further interest at the rate of 6%

per annum.

26. It is made clear and as stated by Mr.Kapadia learned

advocate appearing on behalf of the petitioner, that on return

of the aforesaid amount to the petitioner by the respondent, the

petitioner shall not claim any refund from the Income Tax

Department. It will always be open for the respondent to get

refund of the aforesaid amount from the Income Tax

Department by submitting appropriate / necessary form more

particularly Form No.26B under Rule 31A(3A) of the Income

Tax Rules and as when such an application is made, concerned

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officer / authority of the Income Tax Department to consider

the same in accordance with law and on merits and return /

refund the said amount as early as possibly and preferably

within a period of three months from the date of such

application. Rule is made absolute to the aforesaid extent. No

costs.

(NIRZAR S. DESAI,J) VARSHA DESAI