Ram Gopal Sharma (Senior Citizen) Son Of Shri Kanhaiyalalsharma v. Income Tax Officer, Ward 2(3), Jaipur

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 2120/2020 Ram Gopal Sharma (Senior Citizen) Son Of Shri KanhaiyalalSharma, Aged About 83 Years, Resident Of 92, Shivaji Nagar,Civil Lines, Jaipur In The State Of Rajasthan. ----Petitioner Versus 1. Income Tax Officer, Ward 2(3), Jaipur Having Its Office AtNew Central Revenue Building, Statue Circle, BhagwanDas Road, Jaipur.New Central Revenue Building, Statue Circle, BhagwanDas Road, Jaipur. 2. Central Board Of Direct Taxes, Having Its Address AtNorth Block, New Delhi Through Its Chairman.North Block, New Delhi Through Its Chairman. ----Respondents For Petitioner(s) : Mr. Siddharth Ranka, Adv. withMs. Apeksha Bapna, Adv.For Respondent(s): Mr. Anuroop Singhi, Adv. withMr. N. S. Bhati, Adv. HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE SAMEER JAIN Order 23/05/2022 1.Learned counsel for the petitioner has submitted that thepetitioner is a senior citizen and has been filing regular income taxreturn. In the instant case, return of income tax was filed on23.07.2017 for the assessment year 2017-18. The same came inscrutiny and high pitched additions were made vide assessmentorder dated 28.11.2019. It is submitted that income assessed byAssessing Officer was Rs. 24,04,440/-, which is more than twotimes the returned income, and a demand of Rs. 12,62,649/- wascreated. Against the said order, appeal before the CommissionerOf Income Tax (Appeal-1) was preferred on 18.12.2019, within aperiod of 30 days. After filing appeal, the petitioner suo motodeposited a sum of Rs. 2,52,530/- on 18.12.2019, which was (2 of 3) equivalent to 20% of demand created, in terms of OfficeMemorandum dated 29.02.2016 and 31.07.2017, issued byrespondent No. 2. As a matter of precaution, stay applicationdated 26.12.2019 was also filed by the petitioner, requesting forkeeping the demand in abeyance till the disposal of the appeal. 2.It is further submitted that the Assessing Officer i.e.respondent No. 1, against all canons of law, without disposing thestay application filed by the petitioner, without considering the factthat the petitioner has himself deposited Rs. 2,52,530/- andbypassing the Office Memorandum dated 29.02.2016 and31.07.2017, initiated coercive recovery on 28.01.2020 andrecovered entire amount of Rs. 12,62,650/- from the bankaccount of the petitioner in a exparte manner. 3.In this background, present writ petition was filed againstthe adversarial and illegal approach of the respondents contrary totheir own circulars and provisions of law and against orderspassed by Hon’ble Supreme Court and Hon’ble Jurisdictional HighCourt and other Hon’ble High Court’s. 4Per contra, learned Standing Counsel, Mr. Anuroop Singhi,submitted that the amount of Rs 2,52,530, equivalent to 20% ofadditional demand, which was deposited by the petitioner on18.12.2019 was already refunded to him vide rectification order(u/s 154 r.w.s 144 of the I.T. Act, 1961) dated 01.06.2020, afterthe recovery of entire amount of Rs. 12,62,650 from thepetitioner, which was done on 28.01.2020. On the date of hearing,however, learned counsel for the respondent fairly conceded thatrecovery of over 20% of demand, before disposal of appeal is not appropriate. He was further unable to refute the narration andpositions submitted by counsel for the petitioner. He fairlyconceded that petitioner is entitled to refund of amount in excessof 20% of the total demand which was recovered from him. appropriate. He was further unable to refute the narration andpositions submitted by counsel for the petitioner. He fairlyconceded that petitioner is entitled to refund of amount in excessof 20% of the total demand which was recovered from him. 5.In this background, relying upon the Office Memorandumdated 29.02.2016 & 31.07.2017, considering Section 220(6) ofthe I.T. Act, 1961, considering the fair admission on part ofStanding Counsel, and considering the fact that the amount of Rs2,52,531, equivalent to 20% of the demand, was alreadyrefunded by department on 01.06.2020, this court deems itappropriate to direct the respondent to refund the excess amountof Rs 10,10,119, being 80% of the demand that is alreadyrecovered from the petitioner. The respondents are entitled tokeep 20% of the demand, i.e. Rs 2,52,530 in terms of OfficeMemorandum dated 29.02.2016 and 31.07.2017, until the appealof petitioner pending before Commissioner Of Income Tax (Appeal-1) is decided. The refund of Rs. 10,10,119 be made to thepetitioner within a period of 30 days from the pronouncement ofthis judgment, failing which respondent will be liable to payinterest as applicable. Upon delay of the payment, interest asapplicable will be recovered from the erring officer/respondent. 6.In light of the above, the writ petition is disposed off. Allpending applications also stand disposed off. (SAMEER JAIN),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ