Rajasthan High Court - Jodhpur
Lad Kanwar Sancheti vs Union Of India on 25 March, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:14562-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 9880/2018
Lad Kanwar Sancheti W/o Late Shri Johari Lal Sancheti,
Daughter Of Shri Ganesh Mal Anchalia, Aged About 85 Years,
Presently Resident Of Paota B Road, Jodhpur, Through Her Power
Of Attorney Holder Shri Tribhuvan Raj Bhandari Son Of Late Shri
Sampat Raj Bhandari, Aged 62 Years Resident Of Paota B Road,
Jodhpur.
----Petitioner
Versus
1. Union Of India, Through The Secretary To Department Of
Revenue, Ministry Of Finance, New Delhi.
2. Deputy Commissioner Of Income Tax, Circle 3, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Pranjul Mehta for
Mr. Sharad Kothari
For Respondent(s) : Mr. K.K. Bissa
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE CHANDRA PRAKASH SHRIMALI
Judgment
Reserved on 04/03/2025
Pronounced on 25/03/2025
Per Dr. Pushpendra Singh Bhati, J:
1. This writ petition under Article 226 of the Constitution of
India has been preferred, claiming the following reliefs:
"It is, therefore, most humbly and respectfully
prayed that this writ petition may kindly be allowed with
costs throughout, and
a. by an appropriate writ, order and/or direction the
respondent be directed to decide the application dated
28.10.2010 (Annex.8) preferred by the petitioner under
Section 154 of the Income Tax Act 1961 at the earliest
considering petitioner's age of 85 years; and
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b. the refunds which are due and pending qua the
petitioner for Assessment Year 2006-07 may kindly be
ordered to be released to the petitioner;
c. any other appropriate writ, order or direction which this
Hon'ble Court consider just and proper in the facts and
circumstances of the Case may kindly be passed in favour
of the petitioner."
2. The bone of contention in the present case is the Assessment
Order dated 26.09.2008 pertaining to the Assessment Year 2006-
07, raising a demand from the petitioner. The petitioner preferred
an appeal against the said Assessment Order before the
Commissioner of Income Tax (Appeals) on 13.10.2008, which
partly allowed on 21.01.2009, giving certain directions for
recalculation.
2.1. The petitioner sought refund of certain amount on the basis
of such recalculation, which as per the petitioner, ought to have
been made in pursuance of the order of the CIT (Appeals),
however, the prayer for refund was rejected by the Deputy
Commissioner of Income Tax, Circle-3, Jodhpur, as was not
effective, vide the communication dated 11.05.2010.
2.2. The petitioner again moved an application dated 28.10.2010
under Section 154 of the Income Tax Act, 1961 (hereinafter
referred to as 'Act of 1961') regarding the calculation mistake and
sought refund of an amount of Rs.4,67,761/- in pursuance of the
aforesaid order of the CIT (Appeals).
3. Learned counsel for the petitioner submitted that the
impugned action of the respondents is contrary to the basic order,
which has been passed by the CIT (Appeals). He further submitted
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that as per Section 155 (14) of the Act of 1961, the Assessing
Officer is bound to make amendments in the return of income
submitted by the petitioner when the application under Section
154 of the Act of 1961 is submitted as per law. He also submitted
that it is clear from a bare perusal of the provision that it implies
that if an application is made with respect to the modified
calculation in light of the order of the CIT (Appeals), then the
same has to be allowed and return has to be amended.
3.1. Learned counsel has also drawn attention of this Court
towards the relevant excerpt of Section 155 (14) of the Act of
1961, which reads as under:
"Where in the assessment for any previous year or in any
intimation or deemed intimation under sub-section (1) of
section 143 for any previous year, credit for tax deducted
or collected in accordance with the provisions of section
199 or, as the case may be, section 206C has not been
given on the ground that the certificate furnished under
section 203 or section 206C was not filed with the return
and subsequently such certificate is produced before the
Assessing Officer within two years from the end of the
assessment year in which such income is assessable, the
Assessing Officer shall amend the order of assessment or
any intimation or deemed intimation under sub-section
(1) of section 143, as the case may be, and the
provisions of section 154 shall, so far as may be, apply
thereto."
3.2. Learned counsel further submitted that on bare reading of
the provision, the income tax return of the petitioner was to be
amended as per law, and once such application was submitted
under Section 154 of the Act of 1961, it was the duty of the
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respondents to have made due determination and to pass
appropriate orders in this regard.
3.3. Learned counsel also submitted that the application under
Section 154 of the Act of 1961 has already been submitted before
the respondent authority within the prescribed period and thus,
the impugned non-consideration amounts to an illegality on the
part of the respondents.
4. On the other hand, learned counsel for the respondent
opposed the aforesaid submissions made on behalf of the
petitioner.
5. Learned counsel submitted that the instant writ petition is
not maintainable; it is admitted that the CIT (Appeals) has
disposed of the assessee, with the following remarks:
"Considering all the material facts and the
unavoidable necessity of resorting to estimation of the
Fair Market Value as on 1-4-1981, and also the fact that
the value of the building can be estimated with
reasonable accuracy as on 1-4-1981 as also on the date
of sale, it would be reasonable if the Fair Market Value of
the whole property consisting of the land and the building
as on 1-4-1981 is determined as under-
1- The value of the building be estimate on the date of
sale by adopting the same criteria as applied for
determining the value by the Valuation Officer at
Rs.609893/-.
2- The value of the building so determined as on the
date of the sale as above, after suitable adjustment for
depreciation, be reduced from the full sale consideration,
which remains undisputed as the Assessing Officer has
not disputed the same, to get the value of the land as on
the date of sale.
3- The value of the land as on the date of the sale as
determined above shall be projected backward by
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applying cost inflation index for the year of sale and
1981-82 to determine the Fair Market Value of the land
as on 1-4-1981.
4- The value of the property consisting of the land and
the building as on 1-4-1981 shall be determined as the
sum of the Fair Market Value of the land as on 1-4-1981
determined as above and the value of the building as on
1-4-1981 determined at Rs.6,09,893/- by the Valuation
Officer. This shall be taken as Fair Market Value of the
Property of the assessee as on 1-4-1981 as a substitute
for the cost of acquisition of the property for the purpose
of the determination of the taxable capital gain as the
assessee has exercised the option of adopt the Fair
Market Value of the land as on first day of April 1981 as
permissible u/s 55(2) (b) (ii) of the I.T. Act 1961".
5.1. Learned counsel further submitted that CIT (Appeals), has
granted the aforesaid relief, while further directing that the Fair
Market Value as on 01.04.1981 of the assessee's property was to
be determined, and in the event that the Fair Market Value as on
01.04.1981 determined as above is lower than the one declared
by the assessee in the return of income at Rs.30,20,000/-, the
Fair Market Value as on 01.04.1981 shall be taken at
Rs.30,20,000/-.
5.2. Learned counsel also submitted that the assessee in the
return of income while calculating long term capital gains has
herself taken the cost of acquisition of land & building as on
01.04.1981 to be Rs.30,20,000/-, which was accepted by the
Assessing Officer; the pertinent date is thus 01.04.1981; hence,
the returned income has to be considered Rs.30,20,000/-.
[2025:RJ-JD:14562-DB] (6 of 7) [CW-9880/2018]
5.3. Learned counsel further submitted that the application filed
before the Assessing Officer before the decision of the CIT
(Appeals), has been considered and the cost of acquisition has to
be taken as Rs.37,72,636/-; the indexed cost of acquisition has
also been taken as Rs.1,5,00,9400/-.
5.4. Learned counsel also submitted that the Assessing Officer
rather than proceeding on the given details, has proceeded as per
the order of the CIT (Appeals). He further submitted that the
application was submitted by the petitioner after passing of the
order dated 05.02.2009 and requested to adopt the cost of
acquisition of whole property as on 01.04.1981 to be
Rs.34,29,571/-, which was replied in the manner that the effect to
the order of the CIT (Appeals) has already been given.
6. After hearing learned counsel for the parties as well as
perusing the record of the case, this Court is of the opinion that
the petitioner herself has slept over her rights as the order of the
CIT (Appeals) which was to be given effect to was 21.01.2009 and
the rejection order was dated 21.10.2010, and therefore, any
challenge to the rejection order in the garb of the pending
application under Section 154 of the Act of 1961, after eight years
of delay, cannot be accepted in law.
7. The consideration made on 21.10.2010 was in pursuance of
the order of the CIT (Appeals), whereby the said order has been
given effect to. Any belated challenge after a lapse of eight years
cannot be permitted under the law, as if it is so permitted, it
would amount to opening the pandora's box.
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8. This Court observes that as per the order of the CIT
(Appeals), the respondents have arrived at a satisfaction about
the rate on that particular date and since the satisfaction on that
particular date has been arrived at, then substantial compliance
under the law has been made.
9. In view of the above, this Court does not find it a fit case so
as to grant any relief to the petitioner in the instant petition.
10. Consequently, the present petition is dismissed. All pending
applications stand disposed of.
(CHANDRA PRAKASH SHRIMALI),J (DR.PUSHPENDRA SINGH BHATI),J
SKant/-
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