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TMI Blog2011 (5) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... her return, the assessee disclosed income from household property, business and other sources. The same was processed under section 143(1) of the Act. Subsequently, the case of the assessee was selected for scrutiny and accordingly notice under section 142 of the Act was served on her. In the course of hearing of the assessment case, the assessee was asked to submit her clarification as to why the award of Rs. 25 lakhs from the said TV game show shall not be taxed under section 115BB of the Act. The contention of the assessee before the Assessing Officer was that the award of Rs. 25 lakhs received by her was not taxable under the Act. Rejecting the assessee's explanation, the Assessing Officer completed the assessment under section 143(3) of the Act holding that the award received from the said TV game show was taxable under section 115BB of the Act. 3. Aggrieved by the assessment order, the assessee filed an appeal before the Commissioner of Income-tax (Appeals) (for short, "the CIT(A)") on the ground that the Assessing Officer was not justified in applying the provision of section 115BB of the Act as the amendment to section 2(24)(ix) where an Explanation was added, vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were dismissed. 5. Against that order, the assessee filed appeal under section 260A of the Act before this court for adjudication of various questions of law. However, before this court, the challenge was confined as to whether the receipt of the award by the appellant-petitioner on November 5, 2000, can be said to be income and exigible to tax under the Act for the assessment year 2001-02 especially when the amendment to section 2(24)(ix) was brought into effect from April 1, 2002. This court quashed the order of the learned Income-tax Appellate Tribunal dated August 5, 2004, and remanded all the matters, i.e., the petitioner's appeal, the Department's appeal and also the petitioner's cross-objection to the Tribunal to consider afresh keeping in view the date of the amendment of the relevant statute and in particular the date from which the amendment to the statute came into force. Pursuant to the said order of this court, learned Income-tax Appellate Tribunal on April 30, 2009 allowed the assessee's appeal and dismissed the appeals filed by the Department and the assessee's cross-objection holding that the award of Rs. 25 lakhs from the said TV game show received by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2001, for the financial year 2000-01 relating to the assessment year 2001-02, any default, deferment in payment of advance tax attracts levy of interest under sections 234B and 234C of the Act respectively and requested the assessee to make full and final payment of the advance tax by March 15, 2001. He has also deputed one A.Karim, Income-tax Inspector for the said purpose. Thereafter, the Assessing Officer started threatening the assessee-petitioner that the Department would start prosecution proceeding immediately after March 31, 2001, by which her career would be damaged and served another notice under section 208 of the Act. Referring to their telephonic discussion, the Assistant Commissioner clarified to the assessee-petitioner that under section 115BB of the Act, the assessee is to pay tax at the flat rate of 40 per cent. on the prize money and surcharge of 6 per cent. thereon. In the said letter, the petitioner was also intimated that her tax liability comes to Rs. 10,39,000 after allowing rebate and deductions under different provisions of the Act and in case of default to discharge her obligation to pay the said amount, she would be charged with interest, heavy penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... get refund of the total advance tax of Rs. 7,55,550 with 12 per cent. interest per annum. The assessee-petitioner filed a miscellaneous application before the Income-tax Appellate Tribunal bearing I. T. A. No. 08-11/CTK/2010. Vide order dated August 30, 2010, the said miscellaneous application was disposed of with the observation that since the assessee's appeal was allowed and the Revenue's appeals were dismissed, the Tribunal felt no need to further clarify its above order as the assessee would get the consequential relief in any case. The Assessing Officer is wrong in determining the income of the assessee at Rs. 16,21,630, which is part of the prize money and attempting to collect tax thereon. Referring to section 237 of the Act, Mr. Mishra submitted that a non-existent assessment order cannot be annulled and the return of income lost its existence due to nullity and in terms of section 139(9) of the Act. Consequent upon the decision of the learned Income-tax Appellate Tribunal, the prize money of Rs. 25 lakhs cannot be said to be the income of the assessee and, therefore, payment of advance tax to the tune of Rs. 7,55,550 is refundable in terms of the first part of section 240 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to section 2(24)(ix) of the Act has come into operation from April 1, 2002. This finding of the learned Income-tax Appellate Tribunal is in terms of the judgment of this court dated February 13, 2009, passed in the case of the petitioner-assessee in I.T. A. No. 219 of 2004 (Miss Lopamudra Misra v. Asst. CIT [2011] 337 ITR 86 (Orissa)). Further, the Tribunal finally held that the appeal of the assessee is allowed and the two appeals filed by the Revenue and also the cross objection are dismissed. Admittedly, in her appeal before the Tribunal, the assessee challenged the order of the Commissioner of Income-tax (Appeals) holding that the award received by the assessee was taxable under the head "Income from other sources" which the learned Tribunal held not correct. When the assessee's appeal is allowed, the assessee is justified in saying that the award received by her is not taxable under the head 'Income from other sources'. This order of the Tribunal has not been challenged by the Revenue before this court. Thus, the said order has attained finality. Hence, the Assistant Commissioner is not justified to determine the income of the petitioner-assessee at Rs. 16,21,630 in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r clarify our above order as the assessee will get the consequential relief in any case. The Assessing Officer is directed to pass an order giving effect to the order of the Tribunal dated April 30, 2009." 18. Thus, from the above sequence of events and orders passed by the learned Income-tax Appellate Tribunal it becomes amply clear that the order of the Income-tax Appellate Tribunal dated April 30, 2009, has attained finality. 19. Now, the question that arises for consideration is whether while giving effect to the appellate order, the Assessing Officer can travel beyond the order of the learned Tribunal and assess the receipt of award as income from other sources which has been held by the Tribunal not to be assessed as such in its order. The answer is certainly in the negative. The Assessing Officer being the quasi-judicial authority and subordinate to the Tribunal is bound by the decision of the learned Income-tax Appellate Tribunal. The order of the learned Income-tax Appellate Tribunal is binding on the Assessing Officer. 20. At this juncture it is profitable to refer to the judgment of the apex court in the case of Union of India v. Kamlakshi Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which we direct. The assessee is entitled to get refund of the entire advance tax of Rs. 7,55,500 along with interest, as provided under the Act and we accordingly direct the Assistant Commissioner of Income tax, Circle-2(2), Cuttack, to do so. 22. Before parting with the judgment, we feel it necessary to observe that in view of the various communications made by the Assessing Officer to the petitioner which have been quoted in the body of the writ petition, it is difficult to disbelieve the contentions taken by the assessee in paragraph 4 of the writ petition that being scared of initiation of prosecution and imposition of 300 per cent. penalty and on the assurance of refund of the amount paid as advance tax along with interest at 12 per cent. per annum, the assessee paid advance tax of Rs. 7,55,500 on March 30, 2008, as directed by the Assessing Officer and finally filed the return on February 14, 2002. The letter of the Assistant Commissioner of Income-tax shows that he deputed one A. Karim for the purpose of making full payment of advance tax by the assessee. 23. This is certainly not a healthy practice on the part of the authorities acting on behalf of the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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