PRANLAL CHIMANLAL THAKORE Vs. UNION OF INDIA

JUDGEMENT

(1.) It is the contention of the petitioner that by a registered sale deed dated 23rd June 1961 the petitioner sold land bearing 3 Survey No 80 admeasuring 11977 sq.yds. for a consideration of Rs. 1 11 505 the petitioner received a notice dated 21st July 1962 issued by respondent No.

(2.) under Section 139(9) of the Income-tax Act 1961 for filing of the return of the income for the Assessment Year 1962-63. In response to the said notice the petitioner filed a return of income dated November 20 1962 in the status of Association of person showing income as Nil. It is contended by the petitioner that the said return of income filed was treated as invalid and was ordered to be filed on 12th February 1964. Prior to that the petitioner received a second notice dated August 27 1963 under Section 148 of the Income-tax Act in his capacity as the Karta and Manager of the alleged Hindu Undivided Family of Chimanlal Narbheram Thakore. Again the petitioner submitted a return showing income as Nil. Thereafter the said proceedings were dropped for which the petitioner received a letter dated 10th March 1967. Subsequently a third notice under Section 148 was received by the petitioner on March 28 1967 Despite the objections raised by the petitioner the assessment order dated March 18 1968 was passed by the second respondent assessing the petitioner as liable for capital gains tax for the sum of Rs. 82 46 2 That order was challenged by the petitioner before the Appellate Assistant Commissioner of Income-tax Ahmedabad. The Appellate Assistant Commissioner remanded the matter with a specific direction to give remand report. That remand report was received by the Appellate Assistant Commissioner on September 29 1973 The Appellate Assistant Commissioner finally allowed the appeal by his order dated August 5 1976 Against that order the Department preferred an appeal before the Income-tax Appellate Tribunal. The petitioner filed cross appeal. The appeal filed by the Department was dismissed.

(3.) It is contended by the petitioner that because of the illegal assessment order the petitioner was required to pay various amounts. In all Rs. 26 598.5 from May 25 1967 to August 8 1968 It is his contention that by the order dated February 23 1970 respondent No. 2 had imposed penalty of Rs.10 984 under Section 271(1)(a) of the Income-tax Act. The petitioner had paid the said amount. Thereafter the petitioner had also paid by way of penalty the sum of Rs. 4102.00 pursuant to the order dated February 11 1970 passed by the Inspecting Assistant Commissioner under Section 271 read with Section 274(2) of the Income-tax Act. It is contended that because the order passed by the Income-tax Officer is set aside by the Appellate Assistant Commissioner the petitiones was entitled to recover Rs. 26 598.5 ps. along with the penalty of Rs. 15 86 (Rs. 10 984 + Rs. 4102) paid by him with interest. The petitioner has admitted that the respondents had refunded the amount income-tax and penalty amount of Rs. 10 984 by two instalments being the aggregate amount of Rs. 41 685 However no interest is paid on the said amount. Hence it is prayed that- (a) the respondents may be directed to 20 refund to the petitioner the sum of Rs. 4 102 paid by the petitioner by way of penalty under Section 271 (1)(c) read with Section 274(2) of the Income-tax Act; (b) the words and figures after 31st day of March 1975 occurring in sub-Section (1A) of Section 244 of the Income-tax Act be declared as violative of Article 14 of the Constitution of India; (c) the respondents be directed to pay interest on refund. It is to be noted that in spite of service of notice no affidavit-in-reply is filed on behalf of the respondents.