Commissioner Of Income Tax Non Corporate Ward 10(2) Chennai v. Shri Ganpatraj Surana

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.11.2020 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAMandTHE HONOURABLE MR.JUSTICE R.PONGIAPPAN T.C.A.Nos.228 & 229 of 2020and C.M.P.No.8842 of 2020 Commissioner of Income TaxNon Corporate Ward 10(2)Chennai .. Appellant in both T.C.AsVersus Shri Ganpatraj SuranaNo.16, Trust Square Street,Ramalingapuram,Chennai 600 012PAN:AAVPS 8410 M .. Respondent in bothT.C.As Common Prayer:- Tax Case Appeals filed under Section 260-A ofthe Income Tax Act, 1961, against the order of the Income TaxAppellate Tribunal, Madras 'C' Bench, Chennai made inI.T.A.No.599/Chny/2019andI.T.A.No.600/Chny/2019dated04.09.2019 relating to the Assessment Years 2010-2011 and 2011-2012 respectively. Against the order passed by the commissioner of IncomeTax (A) -12, Chennai, dated 28/01/2019 and 10/01/2019 made inITA.No.140/CIT(A)-12/2017-18, 141/CIT (A)-12/2017-18 and Against the Assessment order passed by the Income TaxOfficer, Non corporate Ward -10 (2) Chennai -34, dated22/12/2017 made in PAN/GIR.No. For Appellant: Mr.M.Swaminathan Senior Standing counsel [in both T.C.As]For Respondent: Mr.P.Hari [in both T.C.As] COMMON JUDGMENT [Order of the Court was made by T.S.SIVAGNANAM, J.] These appeals have been filed by the Revenue underSection 260A of the Income Tax Act, 1961 ('the Act' forbrevity), is directed against the order dated 04.09.2019 passedby the Income Tax Appellate Tribunal, Madras 'C' Bench, Chennai('the Tribunal' for brevity) in I.T.A.No.599/Chny/2019 andI.T.A.No.600/Chny/2019 for the Assessment Years 2010-11 and2011-12 respectively. These appeals were admitted on 26.08.2020on the following Substantial Questions of Law: “1.Whether the Income Tax Appellate Tribunalwas right and justified in setting aside the orderpassed by the Assessing Officer to re-examine thematter when the Assessing Officer has already dulyexamined the matter before passing the assessmentorder? 2. Whether the Income Tax Appellate Tribunalwas right in justified in remitting the issue back tothe file of the Assessing Officer and shifting theonus to the Revenue with a direction that theAssessing Officer shall bring on record the role ofthe assessee in promoting the company and therelationship of the assessee, if any with thepromoters, role of the assessee in inflating the priceof shares, etc.,?” 2. We have heard Mr.M.Swaminathan, learned SeniorStanding counsel for the appellant/Revenue and Mr.P.Hari,learned counsel for 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 17[th] March2020 and published in the Gazette of India on 17[th] March 2020. 4. In terms of the said Act, the assessee has been givenan option to put an end to the tax disputes, which may bepending at different levels either before the First AppellateAuthority or before the Tribunal or before the High Court orbefore the Hon'ble Supreme Court of India. Under Section 2(j)“disputed tax” has been defined. In terms of Section 3, where adeclarant means a person, who files a declaration under Section https://hcservices.ecourts.gov.in/hcservices/ 4 on or before the last date files a declaration to thedesignated authority in accordance with the provisions ofSection 4 in respect of tax arrears, then, notwithstandinganything contained in the Income Tax Act or any other law forthe time being in force, the amount payable by the declarantshall be determined in terms of Section 3(a-c) thereunder. https://hcservices.ecourts.gov.in/hcservices/ 4 on or before the last date files a declaration to thedesignated authority in accordance with the provisions ofSection 4 in respect of tax arrears, then, notwithstandinganything contained in the Income Tax Act or any other law forthe time being in force, the amount payable by the declarantshall be determined in terms of Section 3(a-c) thereunder. 5. The First Proviso to Section 3 states that in case,where an Appeal or Writ Petition or Special Leave Petition isfiled by the Income Tax authority on any issue before theAppellate Forum, the amount payable shall be one-half of theamount in the table stipulated in Section 3 calculated on suchissue, in such a manner as may be prescribed. The second provisodeals with the cases, where the matter is before theCommissioner (Appeals) or before the Dispute Resolution Panel.The third proviso deals with cases, where the issue is pendingbefore the Income Tax Appellate Tribunal. The filing of thedeclaration is as per Section 4 of the Act and the particularsto be furnished are also mentioned in the Sub Sections ofSection 4. Section 5 of the Act deals with the time and mannerof the payment and Section 6 deals with Immunity from initiationof proceedings in respect of offence and imposition of penaltyin certain cases. Section 9 of the Act deals with cases, wherethe Act 3 of 2020 will 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 these appeals 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 Appeals stand 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 these appeals 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 appealsand on such request made by the assessee by filing aMiscellaneous Petition for Restoration, the Registry shall placesuch petition before the Division Bench for orders. https://hcservices.ecourts.gov.in/hcservices/ disposed of with the aforementioned liberty and Consequently,the Substantial Questions of Law are left open. No costs.Connected miscellaneous petition is closed. Sd/-Assistant Registrar//True Copy// Sub Assistant Registrar KakTo1.The Income Tax Appellate Tribunal, 'C' Bench, Chennai.2.The Commissioner of Income Tax (A)-12, Chennai.3.The Income Tax Officer, Non Corporate Ward, 10(2), Chennai-34.+1cc to Mr.M.Swaminathan, Advocate, S.R.No. 38140T.C.A.Nos.228 & 229 of 2020EV(CO)GN(29/12/2020)