Chennai v. Shri Sugandhibai Kundanmal

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAMandTHE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN T.C.A.No.354 of 2020 The Principal Commissioner of Income Tax, Chennai. .. Appellant/RespondentVersus Shri Sugandhibai Kundanmal.. Respondent/Appellant Prayer:- Tax Case Appeal filed under Section 260-A of the IncomeTax Act, 1961, against the order of the Income Tax AppellateTribunal,Madras-A-Bench,ChennaimadeinI.T.A.No.3524/Chny/2018 dated 10.01.2020 relating to theAssessment Year 2010-11, against the order dt:10-01-2020 of theCommissioner of Income Tax(Appeals)-5, Chennai dt 28.09.18 inITA.No.281/CIT(A)-5/2017-18 pertaining to Assistant year 2010-11, against the order of the Income Tax Officer, Non CorporateWard 6(2) Chennai dt 18.12.17 in PAN.No. . For Appellant: Mr.T.Ravikumar Senior Standing counselFor Respondent : Mr.P.Hari JUDGMENT[Order of the Court was made by T.S.SIVAGNANAM, J.] This appeal has been filed by the Revenue under Section 260A of the Income Tax Act, 1961 (-the Act- for brevity), isdirected against the order dated 10.01.2020 passed by the IncomeTax Appellate Tribunal, Madras -A- Bench, Chennai (-theTribunal- for brevity) in I.T.A.No.3524/Chny/2018 for theAssessment Year 2010-11. This appeal was admitted on 07.10.2020on the following Substantial Questions of Law: "1.Whether on the facts and in the circumstances of thecase, the Tribunal was right in setting aside the well reasonedorder passed by the Assessing officer for re-examination,especially when the Assessing Officer had duly examined all thematerial placed while passing the assessment order?2. Whether on the facts and in the circumstances of the https://hcservices.ecourts.gov.in/hcservices/ case, the Tribunal was right in remitting the issue back to thefile of the Assessing Officer by quoting the decision in thecase of Kanhaiyal and Sons (HUF) in ITA.No.1849/Chny/2014 SunilKumar Lalwani and that Aashesh Kumar Lalwani wherein the onushas been shifted to the Revenue with a direction that theAssessing Officer is to bring on record the role of the Assesseein promoting the Company and the relation of the Assessee, ifany with that of the promoters and role of inflating of pricesetc., which exercise had already been done by the AssessingOfficer and the SEBI? And 3. Is not the finding of the Tribunal perverse especiallywhen the decision of the Tribunal is contrary to the time testedprinciple that the person, who asserts a fact has to dischargethe initial burden cast upon him to show that the said facts aretrue and only thereafter the burden would shift to theDepartment?" 2. We have heard Mr.T.Ravikumar, learned Senior Standingcounsel for the appellant/Revenue and Mr.P.Hari, learned counselfor the respondent/assessee. 3. It may not be necessary for this Court to decide theSubstantial Questions of Law framed for consideration on accountof certain subsequent developments. The Government of Indiaenacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of2020) to provide for resolution of disputed tax and for mattersconnected therewith or incidental thereto. The Act of theParliament received the assent of the President on 17th March2020 and published in the Gazette of India on 17th March 2020. 2. We have heard Mr.T.Ravikumar, learned Senior Standingcounsel for the appellant/Revenue and Mr.P.Hari, learned counselfor the respondent/assessee. 3. It may not be necessary for this Court to decide theSubstantial Questions of Law framed for consideration on accountof certain subsequent developments. The Government of Indiaenacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of2020) to provide for resolution of disputed tax and for mattersconnected therewith or incidental thereto. The Act of theParliament received the assent of the President on 17th March2020 and published in the Gazette of India on 17th March 2020. 4. In terms of the said Act, the assessee has been given anoption to put an end to the tax disputes, which may be pendingat different levels either before the First Appellate Authorityor before the Tribunal or before the High Court or before theHon-ble Supreme Court of India. Under Section 2(j) "disputedtax" has been defined. In terms of Section 3, where a declarantmeans a person, who files a declaration under Section 4 on orbefore the last date files a declaration to the designatedauthority in accordance with the provisions of Section 4 inrespect of tax arrears, then, notwithstanding anythingcontained in the Income Tax Act or any other law for the timebeing in force, the amount payable by the declarant shall bedetermined in terms of Section 3(a-c) thereunder. 5. The First Proviso to Section 3 states that in case, wherean Appeal or Writ Petition or Special Leave Petition is filed bythe Income Tax authority on any issue before the AppellateForum, the amount payable shall be one-half of the amount in thetable stipulated in Section 3 calculated on such issue, in sucha manner as may be prescribed. The second proviso deals with the https://hcservices.ecourts.gov.in/hcservices/ cases, where the matter is before the Commissioner (Appeals) orbefore the Dispute Resolution Panel. The third proviso dealswith cases, where the issue is pending before the Income TaxAppellate Tribunal. The filing of the declaration is as perSection 4 of the Act and the particulars to be furnished arealso mentioned in the Sub Sections of Section 4. Section 5 ofthe Act deals with the time and manner of the payment andSection 6 deals with Immunity from initiation of proceedings inrespect of offence and imposition of penalty in certain cases.Section 9 of the Act deals with cases, where the Act 3 of 2020will not be applicable. 6. We are informed by the learned counsel for therespondent/assessee that the assessee has already filed thedeclaration under Section 4 of the Act on 03.11.2020. 7. In the light of the fact that the assessee has alreadyavailed the benefit under the Act, no useful purpose would beserved in keeping this appeal pending. At the same time,safeguarding the interest of the assessee in the event the orderto be passed by the Department under the Act is not in favour ofthe assessee. Accordingly, the Tax Case Appeal stands disposedof on the ground that the assessee has already filed adeclaration and the Department shall process the application atthe earliest in accordance with the said Act and communicate thedecision to the assessee at the earliest. As observed, theassessee is given liberty to restore this appeal in the eventthe ultimate decision to be taken on the declaration filed bythe assessee under Section 4 of the said Act is not in favour ofthe assessee. If such a prayer is made, the Registry shallentertain the prayer without insisting upon any application tobe filed for condonation of delay in restoration of the appealand on such request made by the assessee by filing aMiscellaneous Petition for Restoration, the Registry shall placesuch petition before the Division Bench for orders. 8. With this observation, the Tax Case Appeal standsdisposed of with the aforementioned liberty and Consequently,the Substantial Questions of Law are left open. No costs. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar Kak To 1.The Income Tax Appellate Tribunal, 'A' Bench, Chennai. 'A' Bench, Chennai. 2.The Commissioner of Income Tax(Appeal-5), Chennai. Chennai. 3.The Income Tax Officer, Non Corporate Ward 6(2), Chennai. Non Corporate Ward 6(2), Chennai. +1cc to Mr.T.Ravikumar, Advocate SR.36031T.C.A.No.354 of 2020SRA(CO)CB(15/03/2021)