Madras High Court
G.P.Savithri vs The Income Tax Officer on 3 February, 2021
W.P.No.14031 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.No.14031 of 2014
and
M.P.No.1 of 2014
G.P.Savithri ... Petitioner
Vs.
The Income Tax Officer,
Business Ward XII(3),
7th Floor, KannamaI Building,
611, Mount Road, Chennai – 600 006. ... Respondent
Prayer: Writ Petition is filed under Article 226 of the Constitution of India
praying for the issuance of Writ of Certiorari, to call for the records in
impugned order passed by the respondent in
BDIPS8011B/BWXII(3)/154/2012-13 dated 14.02.2014 and consequential
demand dated 15.05.2014 in No.XII(3) BDIPS8011B/2014-15 on the file of the
respondent and quash the same.
For Petitioner : Mr.A.Thiagarajan, SC
For Respondent : Mr.Prabhu Mukunth Arun Kumar for
M/s.Hema Muralikrishnan
Senior Standing Counsel
1/7
https://www.mhc.tn.gov.in/judis/
W.P.No.14031 of 2014
ORDER
The petitioner has challenged the impugned order giving effect to the
order passed by the Tribunal on 07.02.2013. By the said order, the Tribunal
had remitted the case back to the original authority namely Assessing Authority
to pass order in accordance with law after giving adequate opportunity to the
petitioner.
2.The Tribunal also remitted back to the petitioner's cross objection
to the Assessing officer. Under these circumstances the respondent filed an
application for rectification under Section 254 of the Income Tax Act before
the Tribunal to rectify certain errors on the face of the record in the order
passed on 07.02.2013 in I.T.A.No.722/Mds/2012 for the Assessment
Year:2007-2008.
3.The Tribunal by its order dated 13.01.2014 after extracting the
order passed on 17.02.2013 ultimately held as under:-
A persusal thereof makes it clear that
though the matter has been sent to the Assessing
Officer, it has not been specifically clarified to
the Assessing Officer as to whether he could tax
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W.P.No.14031 of 2014
the impugned capital gains or not. In this regard,
we deem it proper to clarify that once the
division bench of the hon'ble high Court vide
order dated 21.07.2009 has overruled the order
of the Single judge datd 15.10.2008 nullifying
the impugned sale dated executed by the assessee
dated 09.08.2006, the net effect is that the sale
deed is in force and the capital gains in question
can be taxed in the impugned assessment year.
Whilst holding so, we take notice of the fact that
once the sale deed stands restored as a
consequence of the judgment dated 21.07.2009,
necessary implications have to follow under the
provisions of the Act as per law.
4.The impugned order passed by the respondent giving effect to the
order dated 7.2.2013 without taking note of the subsequent order dated
13.01.2014 is challenged as it has been passed ignoring order dated 07.02.2013.
5.Defending the impugned order of the respondent, learned counsel
for the respondent submits that the Tribunal had clarified the position in the
light of the decision of the Division Bench of this High Court on 21.07.2009
which nullified the cancellation of sale deed executed by the assessee namely
the petitioner herein resulted in the sale having been completed and therefore
there was capital gains in the hands of the petitioner. It was therefore submitted
that there is no regularity in the impugned order.
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W.P.No.14031 of 2014
6.Heard the learned counsel for the petitioner and the learned counsel
for the respondent.
7.I have considered the arguments advanced by the learned counsel
for the petitioner and respondent and the impugned order. The impugned order
which has been challenging the present writ petition has been passed as a
consequential order to order dated 07.02.2013. In the said order was clarified
by an dated 13.01.2014. The Tribunal has merely clarified the position of law
in the facts of the case as discussed above. The Tribunal has merely allowed the
application filed by the respondent for a direction to consider and direct the
respondent to tax the capital gains in the hands of the petitioner in terms of the
decision of this High Court on 21.07.2009. The Tribunal has not clarified that
in the light of the clarifications given in its order dated 13.1.2014, assessing
officer was not required to pass a fresh order in terms of its order dated
07.02.2013. Therefore, there is no merits in the impugned order. It is liable to
be quashed.
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W.P.No.14031 of 2014
8.Under these circumstances, the impugned order stands quashed.
The respondent is directed to pass a fresh order in terms of the Tribunal
possession dated 07.03.2013 as clariffied vide order dated 13.01.2014. Since
the dispute pertains the assessment year 2007-2008, the Assessing Officer is
directed to pass appropriate orders within a period of three months from the
date of receipt of this order and thereafter proceed to recover tax if any in
accordance with law.
9.Needless to state, before passing such order, the petitioner shall
also heard in person or through video conferencing.
10.Writ petition stands allowed with the above observations. No
costs. Consequently, connected Miscellaneous Petition is closed.
03.02.2021
Index : Yes / No
Internet : Yes/ No
jas
https://www.mhc.tn.gov.in/judis/
W.P.No.14031 of 2014
Notes:-In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the responsibility
of the advocate / litigant concerned.
To
The Income Tax Officer,
Business Ward XII(3),
7th Floor, KannamaI Building,
611, Mount Road, Chennai – 600 006.
C.SARAVANAN, J.
https://www.mhc.tn.gov.in/judis/
W.P.No.14031 of 2014
jas
W.P.No.14031 of 2014
and
M.P.No.1 of 2014
03.02.2021
https://www.mhc.tn.gov.in/judis/
