ORDER
CM No. 141/2007 (Exemption)
1. Allowed, subject to all just exceptions.
2. CM stands disposed of. ITA No. 38/2007
3. By an order dated 11-10-2001 passed by the Income Tax Appellate Tribunal, Delhi Bench ‘E’ in ITA No. 4012/Delhi/1995 relevant for the assessment year 1991-92, the Tribunal upheld the addition of Rs. 10,28,040 in the hands of the assessed but directed the assessing officer not to recover tax, surcharge, if any and interest thereon attributable to such income.
4. It appears that the assessed had already paid tax on this amount and we find from the order passed by the Tribunal on 26-5-2006 (which is impugned in this appeal) in ITA No. 4418/Delhi/2003 that tax had already been paid by the firm in which the assessed was a partner.
5. In view of this, the assessed applied for a refund of the amount, which was declined by the assessing officer. While allowing the claim of the assessed, the Tribunal, in the impugned order, noted as follows:
In the instant case undisputedly, the firm has paid the tax at the rate of 35 per cent on the disputed income of the firm. The assesseds share in those income of the firm works out to Rs. 10,28,040. While giving effect to the order of the Tribunal, the assessing officer should not have levied taxes and surcharge on such income, but we found that the Assessing Officer has not given effect to the order of the Tribunal in letter and spirit.
We do not find any merit in such order of the assessing officer. Where the Tribunal has passed the order, the department, if want can go in further appeal under relevant provisions of the Act, but the assessing officer has no power to interpret the order of the Tribunal, while giving effect to it. The assessing officer cannot sit on the judgment of the Tribunal and he is duty bound to pass order giving effect to the order passed by the Tribunal. We, therefore, direct the assessing officer not to levy any tax and surcharge on the assesseds share of income in the firm amounting to Rs. 10,28,040 while passing the order under Section 154/ 254/250/143(3) of the Income Tax Act.
6. We are of the view that tax cannot be levied on the same amount both in the hands of the assessed as well as in the hands of the firm and, therefore, the order of the Tribunal dated 26-5-2006 cannot be faulted on this ground.
7. We find no merit in this appeal. Dismissed.