Law:

Section:

Section 33A of the Gift-tax Act, 1958 - Refund - Claim in writ petition - Assessment years 1964-65 - Assessees thrown their self - acquired property in common hotch pot of HUF - They filed return showing nil taxable gift with a Letter pointing out in view of decision of Tribunal in case of Goli wariah v. CGT [1970] 76 ITR 675 (SC) throwing of self-acquired property into hotch pot of HUF did not amount to gift - GTO, however, taxed value of property as gift and charged tax - No appeal there against was preferred - Subsequently nearly after six years from date of passing assessment order on coming to know that Supreme Court upheld decision in Goli Eswariah's case, (supra) assessee's addressed letters to Commissioner asking for refund - Whether though assessee's knew legal position at time of filling return since they did not prosecute remedy open to them and allowed claim to be time barred under the Act, it could not be said that levy was under mistake of law so as to give relief in proceedings under article 226 of Constitution - Held, yes - Whether further, it could not be said that the petitioners had exhausted all their remedies under the special machinery set up under the Act and they not having availed themselves of the special machinery, it was not proper for court to exercise discretionary jurisdiction vested in it under article 226 - Held, yes FACTS The petitioners were members of a HUF. They had their own smaller HUF's. Each of them purported to have thrown his self-acquired property into the common hotchpot of the HUF with the intention of relinquishing his proprietary interest in the property thus thrown into the common hotchpot. These amounts of self-acquired property thrown into the common hotchpot had been treated by the GTO concerned at the relevant time as gifts made by the individual concerned to the HUF. Each of these alleged gifts was made in the accounting period relevant to the assessment year 1964-65. At the time of filing the return the assessee's had addressed a letter to the GTO in charge of the assessment pointing out that the Tribunal, Hyderabad, had held in the case of Goli Eswariah v. CGT [1970] 76 ITR 675(SC) that when a separate…

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