M/S Hillways Construction Company Private Limited v. Income Tax Department And Others. ……

IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL SPECIAL APPEAL NO. 645 OF 2018 M/s Hillways Construction Company Private Limited ……….Appellant. Vs. Income Tax Department and others. ……..Respondents Mr. Gautam Jain & Mr. Arvind Kumar Sharma, Advocates for the appellant. Mr. H.M. Bhatia, Advocate for the respondents. JUDGMENT Coram: Hon’ble Rajiv Sharma, ACJ. Hon’ble Manoj Kumar Tiwari, J. Dated: 14th August, 2018 Rajiv Sharma, ACJ (Oral) This Special Appeal is preferred against the judgment dated 02.05.2018 rendered by the learned Single Judge in Writ Petition (M/S) No. 3198 of 2016 and order dated 24[th] July, 2018 rendered by the learned Single Judge in MCC Review Petition No. 929 of 2018. 2. Key facts necessary for adjudication of this Appeal are that the appellant had filed Writ Petition (M/S) No. 3198 of 2016 seeking the benefit of Income Declaration Scheme, 2016, which gave an opportunity to an assessee to declare the undisclosed assets / income. One of the criterion for a person to avail the benefit of the Scheme is that the Scheme shall not apply in relation to prosecution of any offence punishable under Chapter IX or Chapter XVII of the Indian Penal Code, the Narcotic Drugs and Psychotropic Substances Act, 1985, the Unlawful Activities (Prevention) Act, 1967 and the Prevention of Corruption Act, 1988. The appellant claimed the benefit under the Scheme. He sought a declaration. The same was denied by the Income Tax Authorities on 24[th] October, 2016. A charge sheet has also been filed by the CBI against the appellant under Sections 120-B, 420, 468 & 471 of IPC, but the charges were framed by the Special Judge, Anti Corruption, CBI against the appellant only under Sections 120-B, 420, 468 and 471 of I.P.C. In view of the same, the learned Single Judge has dismissed the writ petition bearing No. 3198 of 2016 (MS) on 2[nd] May, 2018. The appellant carried an Appeal against the judgment dated 2[nd] May, 2018 bearing SPA No. 405 of 2018. The Special Appeal was dismissed as withdrawn by a Division Bench of this Court on 9[th] July, 2018. The judgment dated 9[th] July, 2018 reads as follows: “Mr. Gautam Jain and Mr. A.K. Sharma, Advocates for the appellant. Mr. H.M. Bhatia, Advocate for the respondents. Learned counsel for the appellant is permitted to withdraw the present special appeal with liberty to file a review petition before the learned Single Judge by placing on record the circular dated 20.05.2016. Accordingly, the Special Appeal is dismissed as withdrawn with liberty as above.” 3. Thereafter, in sequel to the judgment dated 9[th]July, 2018, the appellant filed a review petition bearing MCC No. 929 of 2018. The same was dismissed by the learned Single Judge on 24[th] July, 2018. 4. The contention of the appellant is that certain clauses of the Income Declaration Scheme, 2016 had not been taken into consideration. 5. The learned Single Judge has taken into consideration the entire Scheme while disposing of the writ petition as well as the review petition. The appellant was not eligible to get the benefit of the Income Declaration Scheme, 2016, since charges have been framed by the Special Judge, Anti Corruption, CBI against the appellant under Section 120-B, 420, 468 and 471 of IPC. Moreover, we would also like to clarify at this stage that Special Appeal is not maintainable against an order passed in a review petition. The filing of cases repeatedly on the same cause of action amounts to gross misuse of the process of the Court. Accordingly, there is no merit in the Appeal. The same is dismissed with cost quantified at Rs. 10,000/-. (Manoj Kumar Tiwari, J.) (Rajiv Sharma, ACJ.) 14.08.2018 Rathour