Sachin Panjabrao Ghavghave v. Income Tax Officer, Ward 13(1), Pune & Ors

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4061 OF 2022 Sachin Panjabrao GhavghaveVersusIncome Tax Officer, Ward 13(1), Pune & Ors. …Petitioner …Respondents Mr. Nageswar Rao (through VC) with Mr. Parth, i/b. Lumiere Law Partners, for Petitioner.Mr. Suresh Kumar, for Respondents-Revenue. CORAM:K. R. SHRIRAM &DR. NEELA GOKHALE, JJ.DATED:26[th] February 2024 PC:- 1.The issue in this petition is very narrow. 2.Petitioner had earned certain income during a short stay inAustria when his employer had sent him there on some assignment.Petitioner states that he paid taxes in the sum of Rs.1,61,272/- inAustria and as per the India-Austria Double Taxation AvoidanceAgreement, Petitioner should be given credit for this amount paid. 3.After Petitioner filed his return of income, he received anintimation under Section 143(1) of the Income Tax Act, 1961 (“theAct”) dated 17[th] March 2020 in which the relief towards the tax paidin Austria of Rs.1,61,272/- was not granted. Petitioner, therefore,filed an application under Section 154 of the Act for rectification. The same came to be rejected by an order communicated on 2[nd] June2020 that is impugned in this petition without assigning any reason.The order simply states, “on verification, it is seen there is no primafaice error in the order which you have sought to be rectified.Therefore, your application for rectification under Section 154 of theAct is rejected, for the following reasons (if any).” “Under Section 154 of Income Tax Act 1961, rectificationapplication can be filed only to correct mistakes apparent fromrecords. In this case, fresh claims of Relief/Withdrawal ofrelief is being done in the rectification application. Thischange is not a mistake apparent from records. Hence yourrectification request cannot be processed.” In our view, this cannot be termed ‘reason’ because Petitioner’s grievance of not having been given relief under Section 90/90A hasnot been dealt with. 4.In the circumstances, we hereby quash and set aside theimpugned communication dated 2[nd] June 2020 and remand thematter to the Jurisdictional Assessing Officer (“JAO”), who shallconsider Petitioner’s application under Section 154 of the Act denovo. If Petitioner has paid the taxes amounting to Rs.1,61,272/-and in law Petitioner is entitled to credit for the same under theIndia-Austria Double Taxation Avoidance Agreement or the provisionsof the Act, the same shall be considered and a reasoned order shall bepassed. Mr. Rao states that the evidence of having paid this tax inAustria is annexed at Exhibit ‘J’ to the petition. The JAO shallconsider this document and pass a reasoned order on merits dealingGaikwad RD 3/3 418-oswp-4061-2022.doc with all submissions of Petitioner, in accordance with law. Beforepassing an order a personal hearing be granted to Petitioner, noticewhereof shall be communicated at least five working days inadvance. Mr. Rao states that it would help if the personal hearing isgiven on video conferencing. Ordered accordingly. 5.The order on the application under Section 154 of the Act shallbe passed on or before 30[th] April 2024. After the personal hearing, ifPetitioner wishes to file any written submission, the same to be filedwithin three working days of the conclusion of the personal hearing.If the JAO is going to rely on any judgment or order of any Court orTribunal, a list thereof shall be made available along with the noticefor personal hearing so that Petitioner will be able to deal with ordistinguish the same. 6.Petition disposed. No order as to costs. (DR. NEELA GOKHALE, J.) (K. R. SHRIRAM, J.)