D.A. Mehta, J.
1. In light of the view that the Court is inclined to adopt the matter is taken up for final hearing and disposal today. Rule. Learned advocate for the respondent is directed to waive service.
2. The petition has been preferred praying for following reliefs:
(A) this Hon'ble Court be pleased to call for the records of the proceedings, look into them and be pleased to issue writ of certiorari or any other appropriate writ, order or direction quashing the order at Exhibit-I and Exhibit-L.
(B) this Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction asking the Respondent No. 1 to quash/waive the interest in toto.
(C) this Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction asking the Respondents and his subordinates not to do any further or other thing including the recovery of said interest of Rs. 5,84,348/- in pursuance of the said order at Exhibit-I and Exhibit-L.
(D) this Hon'ble Court be pleased to hold that the petitioner is entitled to total waiver of interest under Section 234A and 234B and without prejudice to this prayer, set aside the matter to the assessing officer with the same directions as has been done by the Hon'ble I.T.A.T. in the other cases as stated above.
(E) Pending the hearing and final disposal of this application, this Hon'ble Court be pleased to stay the recovery of interest of Rs. 5,84,348/- under Section 234A and 234B.
(F) this Hon'ble Court be pleased to pass any further or other order as it deems fit in the interest of justice in the matter.
(G) this Hon'ble Court be pleased to allow this petition with costs against the respondents.
3. The case of the petitioner is that sometime in 1990-91, Gujarat Narmada Nigam Authority initiated proceedings for compulsory acquisition of the agricultural land of the petitioner and co-owners for the purpose of construction of Narmada Canal. It is the say of the petitioner that petitioner was chosen to represent the interest of himself and other co-owners of the land falling within Block No. 15 of the village : Piyaj, Tal.: Kalol, District: Gandhinagar. That after litigation, the petitioner and other co-owners became entitled to compensation along with interest in land acquisition proceedings. The total amount of interest was computed at a figure of Rs. 20,01,716/-. It is the case of the petitioner that the said interest was relatable to a period of 102 months. As per the tax deduction certificate which was in the name of the petitioner, the petitioner filed return of income for assessment year 2001-2002 showing proportionate income for 12 months worked out at sum of Rs. 2,35,500/-. After working out the tax payable at Rs. 44,650/- net refundable amount was claimed at Rs. 1,75,539/- based on TDS certificate, wherein, tax deducted at source was shown to be Rs. 2,20,189/-. The petitioner was duly assessed by accepting the said return of income but the Assessing Officer thereafter issued notice under Section 148 of the Income Tax Act, 1961 ('the Act') calling upon the petitioner to file returns of income for earlier assessment years, which had admittedly not been filed. The petitioner thereafter filed returns for the said assessment years and assessments were completed.
4. Ultimately, the petitioner filed a petition on 31.8.2006 for Assessment Years 1996-97 to 2000-2001 for waiver of interest charged under Sections 234A and 234B of the Act. In the said petition the petitioner had categorically taken a stand that interest should be waived/charged only in relation to the share of the petitioner as he was only one of the co-owners of the land, which was acquired. Respondent rejected the application vide impugned order dated 20.12.2006 holding that as the returns were not voluntarily filed in response to the notice under Section 148 of the Act, the conditions for waiver of interest were not satisfied.
5. Learned advocate appearing on behalf of the petitioner has reiterated the facts narrated in the petition and submitted that the petitioner was an illiterate agriculturist, who went by the advice of the tax practitioner, and therefore was not liable to saddled with liability to pay interest. That there was no intention not to file returns of income for the earlier assessment years. It was further submitted that the returns for earlier assessment years could not have been filed because the period of limitation prescribed under Section 139 of the Act had expired. That petitioner had not contested the assessments on merits and had paid tax as per the assessments framed. It was therefore urged that respondent authority had erred in not granting the waiver petition.
6. Alternatively, it was urged that similarly situated agriculturists had carried the matter in appeal upto Tribunal contesting the taxability in hands of only one person instead of liability to pay tax by other co-owners and had succeeded before the Tribunal as could be seen from the order of Tribunal made on 07.06.2006 in I.T.A. Nos. 411 to 415/AHD/2006 in case of Shri Shakaraji Visaji Thakore and others. It was therefore pleaded that at least to the extent of the shares of co-owners, the petitioner was entitled to relief as per alternative prayer in prayer clause 12(D) of the petition. That the Tribunal in similar situation had set aside the assessments and remitted the matters back to the file of Assessing Officer to make appropriate inquiry and make assessments in the case of the persons in whose hands the interest on the compensation was actually taxable.
7. Learned Senior Standing Counsel Mr. M.R. Bhatt appearing on behalf of respondent authority has emphasized the fact that the order of respondent authority has categorically found on facts that the returns of income for assessment years 1996-97 to 2000-2001 are not voluntary and therefore, the petitioner was not entitled to any relief. In relation to the alternative prayer it was submitted that the petitioner had at no stage made such a prayer, and if made, the same was given up before the authority, and in absence of the petitioner having kept alive his cause of action, no relief should be granted at this stage.
8. In so far as the principal prayer is concerned, the Court does not find any merits in the petition so as to warrant interference. It is not in dispute that returns for assessment years 1996-97 to 2000-2001 were filed only after notices were issued under Section 148 of the Act. Thus, the said returns have rightly been held by the respondent authority as not being voluntary in nature. In the circumstances, the impugned order dated 20.12.2006 does not call any interference.
9. However, in so far as the alternative prayer is concerned, even if the petitioner has wrongly been taxed on the entire sum of compensation and interest, at least to the extent of charging interest under the provisions of Sections 234A and 234B of the Act, it would be fair and just if such interest portion is allocated amongst co-owners for computing the interest liability of the petitioner under the provisions of the Act. For this purpose, the petitioner shall have to establish before the Assessing Officer the share belonging to each of the co-owners.
10. Hence without expressing any opinion on the aspect as to whether the petitioner is, or is not entitled, to any relief on this count, for this limited purpose, the matter is restored to file of the Assessing Officer to ascertain, in the first instance, as to whether the petitioner is a co-owner of the land in question with others, as claimed by the petitioner. The petitioner is entitled to produce necessary evidence in this regard before the Assessing Officer. After appreciation of such evidence, the Assessing Officer shall determine as to whether the interest received along with the compensation for the lands acquired is liable to be apportioned amongst various co-owners or whether the same is liable to be taxed in the hands of the petitioner alone. In the event the Assessing Officer comes to the conclusion that the petitioner is entitled to such apportionment, then only for the purpose of computing the liability to pay interest under Sections 234A and 234B of the Act, shall such an exercise be taken by the Assessing Officer.
11. The petition is accordingly allowed to the aforesaid extent subject to what is stated hereinbefore. Rule is made absolute to the said extent with no order as to costs.