Mukeshkumar Ramanlal Desai vs State Of Gujarat
2023 Latest Caselaw 2176 Guj

     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

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

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

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