G.p.savithri v. The Income Tax Officer,Business Ward Xii(3),7[Th] Floor, Kannamai Building

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 03.02.2021CORAM: THE HONOURABLE MR.JUSTICE C.SARAVANANW.P.No.14031 of 2014andM.P.No.1 of 2014 G.P.Savithri ... Petitioner Vs. The Income Tax Officer,Business Ward XII(3),7[th] Floor, KannamaI Building,611, Mount Road, Chennai – 600 006. ... Respondent Prayer: Writ Petition is filed under Article 226 of theConstitution of India praying for the issuance of Writ ofCertiorari, to call for the records in impugned order passed bythe respondent in BDIPS8011B/BWXII(3)/154/2012-13 dated14.02.2014 and consequential demand dated 15.05.2014 in No.XII(3) BDIPS8011B/2014-15 on the file of the respondent and quashthe same. For Petitioner :Mr.A.Thiagarajan, SC Mr.S.Ramesh KumarFor Respondent :Mr.Prabhu Mukunth Arun Kumar for M/s.Hema Muralikrishnan Senior Standing Counsel O R D E R The petitioner has challenged the impugned order givingeffect to the order passed by the Tribunal on 07.02.2013. Bythe said order, the Tribunal had remitted the case back to theoriginal authority namely Assessing Authority to pass order inaccordance with law after giving adequate opportunity to thepetitioner. 2.The Tribunal also remitted back to the petitioner's crossobjection to the Assessing officer. Under these circumstancesthe respondent filed an application for rectification underSection 254 of the Income Tax Act before the Tribunal to rectifycertain errors on the face of the record in the order passed on https://hcservices.ecourts.gov.in/hcservices/ 07.02.2013 in I.T.A.No.722/Mds/2012 for the AssessmentYear:2007-2008. 3.The Tribunal by its order dated 13.01.2014 afterextracting the order passed on 17.02.2013 ultimately held asunder:- A persusal thereof makes it clearthat though the matter has been sent tothe Assessing Officer, it has not beenspecifically clarified to the Assessing Officer as to whether he could tax theimpugned capital gains or not. In thisregard, we deem it proper to clarify thatonce the division bench of the hon'blehigh Court vide order dated 21.07.2009 has overruled the order of the Singlejudge datd 15.10.2008 nullifying the impugned sale dated executed by theassessee 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 effectto the order dated 7.2.2013 without taking note of thesubsequent order dated 13.01.2014 is challenged as it has beenpassed ignoring order dated 07.02.2013. 5.Defending the impugned order of the respondent, learnedcounsel for the respondent submits that the Tribunal hadclarified the position in the light of the decision of theDivision Bench of this High Court on 21.07.2009 which nullifiedthe cancellation of sale deed executed by the assessee namelythe petitioner herein resulted in the sale having been completedand therefore there was capital gains in the hands of thepetitioner. It was therefore submitted that there is noregularity in the impugned order. 6.Heard the learned counsel for the petitioner and thelearned counsel for the respondent. 7.I have considered the arguments advanced by the learnedcounsel for the petitioner and respondent and the impugnedorder. The impugned order which has been challenging the presentwrit petition has been passed as a consequential order to order 6.Heard the learned counsel for the petitioner and thelearned counsel for the respondent. 7.I have considered the arguments advanced by the learnedcounsel for the petitioner and respondent and the impugnedorder. The impugned order which has been challenging the presentwrit petition has been passed as a consequential order to order dated 07.02.2013. In the said order was clarified by an dated13.01.2014. The Tribunal has merely clarified the position oflaw in the facts of the case as discussed above. The Tribunalhas merely allowed the application filed by the respondent for adirection to consider and direct the respondent to tax thecapital gains in the hands of the petitioner in terms of thedecision of this High Court on 21.07.2009. The Tribunal has notclarified that in the light of the clarifications given in itsorder dated 13.1.2014, assessing officer was not required topass a fresh order in terms of its order dated 07.02.2013.Therefore, there is no merits in the impugned order. It isliable to be quashed. 8.Under these circumstances, the impugned order standsquashed. The respondent is directed to pass a fresh order interms of the Tribunal possession dated 07.03.2013 as clariffiedvide order dated 13.01.2014. Since the dispute pertains theassessment year 2007-2008, the Assessing Officer is directed topass appropriate orders within a period of three months from thedate of receipt of this order and thereafter proceed to recovertax if any in accordance with law. 9.Needless to state, before passing such order, thepetitioner shall also heard in person or through videoconferencing. 10.Writ petition stands allowed with the aboveobservations. No costs. Consequently, connected MiscellaneousPetition is closed. Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar jas ToThe Income Tax Officer,Business Ward XII(3),7[th] Floor, KannamaI Building,611, Mount Road, Chennai – 600 006. ppa[co]srg 05/03/2021 https://hcservices.ecourts.gov.in/hcservices/