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TMI Blog2018 (1) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... y of compensation for a land acquired from him for the Kochi Metro Rail Project. The petitioner, at the relevant time was under the impression that the capital gains resulting from the acquisition of the land is exigible to tax under the Act. Consequently, in the return filed by the petitioner under the Act for the assessment year 2015-16, he has, disclosed the capital gains resulting from the acquisition of the said land and paid tax on that basis. For the said purpose, the petitioner has worked out the indexed cost of the land reckoning its fair market value as on 01.04.1981 at Rs. 50,000/- per cent. 2. The first respondent issued Ext.P3 notice to the petitioner under Section 143(2) of the Act for scrutiny of the return filed by him. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit petition was admitted on 24.07.2017. This Court also passed an interim order in the said case on 24.07.2017 restraining the first respondent from continuing the proceedings. 3. While so, the petitioner was served with Ext.P12 order dated 14.07.2017, by which the first respondent has completed the proceedings initiated in terms of Ext.P3 notice raising a demand for Rs. 9,95,070/- on the basis that the cost indexation of the land made by the petitioner cannot be accepted and that the fair market value of the land as on 01.04.1981 can be reckoned only at Rs. 1,400/- per cent for the purpose of cost indexation. According to the petitioner, after Ext.P6 notice, the first respondent had issued Ext.P11 notice also to the petitioner directing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e so, the petitioner cannot be heard to contend, relying on Ext.P11 notice, that the impugned order is a predated one. Apart from the case developed on the strength of Ext.P11 notice, petitioner has not placed on record any material to indicate that the impugned order is one issued after 24.7.2017 with a pre-date maliciously with a view to defeat W.P.(C).No.23113 of 2017 instituted by the petitioner before this Court. In the circumstances, the contention of the petitioner that Ext.P12 order dated 14.07.2017 is a predated one issued maliciously with a view to defeat W.P.(C). No.23113 of 2017 , is liable to be rejected. 7. It is seen that even while the petitioner has an effective alternative remedy by way of appeal against Ext.P12 order und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arket value of the land as on 01.04.1981 adopted by the petitioner for cost indexation cannot be accepted. Nevertheless, it was contended by the learned Standing Counsel that in so far as the petitioner has disclosed the capital gains resulting from the acquisition of land in the return filed by him and paid tax on that basis, in the absence of a revised return, the assessing officer is precluded from considering the question whether the petitioner is liable to pay tax on the said capital gains. The learned counsel relied on the decision of the Apex Court in Goetze (India) Ltd v. Commissioner of Income-Tax [(2006) 284 ITR 323 (SC)], in support of the said contention. 10. The short question arising for consideration, therefore, is whether i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing officer cannot, in such cases, refuse to grant relief under Section 143 of the Act to the assessee on the technical plea that the assessee has not filed a revised return. It is so since the paramount duty of the assessing officer is to complete the assessments in accordance with law. It is all the more so in the light of the mandate under Article 265 of the Constitution that no tax shall be levied or collected except by authority of law. I am fortified in the aforesaid view by the observations made by the Apex Court in Commissioner of Income Tax, Bhopal v. Shelly Products and another [(2003) 5 SCC 461]. Paragraph 36 of the judgment of the Apex Court in the said case reads thus: "36. We cannot lose sight of the fact that the fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a bearing on the quantum of the refund, such as those the assessee could have urged under Section 237 of the Act. The authority concerned, for the limited purpose of calculating the amount to be refunded under Section 240 of the Act, may take all such facts into consideration and calculate the amount to be refunded. So viewed, an assessee will not be placed in a more disadvantageous position than what he would have been, had an assessment been made in accordance with law." (underline supplied). In the instant case, the petitioner has not filed a revised return when he was made to understand that he has no liability to pay tax on the capital gains resulting from the acquisition of land. The reason is obvious that the time prescribed under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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