Op/13106/1999 Of M/S.south India Corpn. Ltd.., Ekm v. Commr. Of Income Tax,Ekm

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 OP.No. 13106 of 1999(I) ----------------------- PETITIONER(S): ---------------SOUTH INDIA CORPORATION LTD., CLOTH BAZAR ROAD, ERNAKULAM,REP. BY ITS WHOLETIME DIRECTOR, MR.VR.VEERAPPAN. BY ADV. SRI.A.M.SHAFFIQUE SRI.GEORGE K. GEORGE, SC FOR IT RESPONDENT(S): ---------------COMMISSIONER OF INCOME TAX, KOCHI,I.S.PRESS ROAD, ERNAKULAM. ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12.12.2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER(S)' EXHIBITS P1.COPY OF THE ASSESSMENT ORDER FOR 92-93. P2.COPY OF THE ASSESSMENT ORDER FOR 93-94. P3.COPY OF THE ASSESSMENT ORDER FOR 94-95. P4.COPY OF THE APPELLATE ORDER FOR 92-93. P5.COPY OF THE APPELLATE ORDER FOR 93-94. P6.COPY OF THE APPELLATE ORDER FOR 94-95. P7.COPY OF THE COMMON ORDER OF THE TRIBUNAL FOR 93-94 DTD.30.12.97. P8.COPY OF THE TRIBUNAL ORDER FOR 94-95 DTD.28.4.98. P9.COPY OF THE FINAL ORDER BY THE TRIBUNAL. P10.COPY OF THE ORDER IN R.A.161(COCH)/1998. FOR 1994-95 DTD.20.10.98. P11.COPY OF THE APPLICATION FOR 1992-03 TO 1994-95 IN FORM NO.1A. P12.COPY OF THE CERTIFICATE ISSUED BY THE COMMISSIONER OF INCOME TAXDTD.26.2.99.DTD.26.2.99. P13.COPY OF THE LETTER TO THE COMMISSIONER OF INCOME TAX DTD.26.3.99. Sdk+ ///True copy/// P.A. to Judge ================== O.P.No. 13106 of 1999 ================== Dated this the 12[th] day of December, 2008J U D G M E N T The issue involved in this original petition relates to theeligibility of the petitioner for applying for the benefits under theKar Vivad Samadhan Scheme, 1998, introduced by the Finance(No.2) Act, 1998. This scheme has been introduced forsettlement of pending income tax cases. For becoming eligible forapplying under the Scheme, the issue in respect of which thebenefit is claimed should be one pending in appeal, revision,reference etc. before any authority or court on the date ofapplication for benefit of the scheme. The assessment yearsinvolved are 1992-93 to 1994-95. The appeals filed against theassessment were apparently allowed in favour of the petitioner.The Department filed application for reference of certainquestions of law for decision by the High Court. According to thepetitioner, five questions of law were sought to be referred fordecision of this Court in the reference application submitted bythe Revenue. The final decision on the same was still pendingwith the Tribunal when the Kar Vivad Samadhan Scheme came o.p.13106/99 into force. Therefore, by Ext.P11, the petitioner submittedapplication for benefit of the scheme on 29.1.1999. The petitionersought benefit in respect of two issues. In respect of one issue,the petitioner was given the benefit. But, by Ext.P12 order, theRevenue rejected the claim under the Scheme in respect of otherissue on the ground that that issue was not pending on therelevant date. 2.According to the petitioner, Ext.P12 order to thatextent is unsustainable in so far as the order refusing to refer thequestion of law on the issue at the instance of the Revenue wascommunicated to the petitioner only on 13.2.1999, ie. after thepetitioner submitted Ext.P11 application for benefit of thescheme. Therefore, according to the petitioner, as on the dateof application under the Scheme, the issue was still pendingconsideration. The petitioner challenges Ext.P12 to that extent and seeks the following reliefs: “i)to issue a writ of certiorari quashing Ext.P12 as illegal, arbitraryand unauthorised; andand unauthorised; and 2.According to the petitioner, Ext.P12 order to thatextent is unsustainable in so far as the order refusing to refer thequestion of law on the issue at the instance of the Revenue wascommunicated to the petitioner only on 13.2.1999, ie. after thepetitioner submitted Ext.P11 application for benefit of thescheme. Therefore, according to the petitioner, as on the dateof application under the Scheme, the issue was still pendingconsideration. The petitioner challenges Ext.P12 to that extent and seeks the following reliefs: “i)to issue a writ of certiorari quashing Ext.P12 as illegal, arbitraryand unauthorised; andand unauthorised; and ii)to issue a writ of mandamus directing the respondent to permitsettlement under Section 88 of Finance (No.2) Act, 1998 inrespect of the disputed income and tax offered by the petitionerunder Ext.P11 for the assessment years 1992-93, 1993-94 and1994-95.”settlement under Section 88 of Finance (No.2) Act, 1998 inrespect of the disputed income and tax offered by the petitionerunder Ext.P11 for the assessment years 1992-93, 1993-94 and1994-95.” o.p.13106/99 3.The learned Standing Counsel for the Revenueopposes the contentions of the petitioner. According to him, thereference applications were heard and the question of law inrespect of the issue in question was refused to be referred by theTribunal to the High Court even before the date of application.Out of the five questions included in the reference applications,only one question was referred, which was not in respect of theissue for which the petitioner sought benefit under the scheme.The draft statement containing only one question was circulatedto the parties by the Tribunal much before the application of thepetitioner on 29.1.1999, is the contention raised by the counselfor the Revenue. The counsel for the Revenue would, therefore,submit that since at the time of application submitted by thepetitioner no issue was pending consideration by any forum, thepetitioner is not entitled to the benefit of the scheme. 4.I have considered the rival contentions in detail. 5.The question to be considered is as to whether theissue in question was pending consideration by any forum on thedate of application by the petitioner by Ext.P11. On 29.1.1999 ifthe issue in respect of which the petitioner is claiming benefit of o.p.13106/99 the scheme was not pending consideration by any forum, thenthe petitioner is not entitled to the benefit of the scheme. Thecontention of the petitioner is that the issue was pending sincethe refusal by the Tribunal to refer the question of law in respectof that issue was made known to the petitioner only on13.2.1999. But this contention is belied by the averments of thepetitioner in the original petition itself. In paragraph 2 of theoriginal petition the petitioner themselves categorically statethus: “2..... It may be noticed that the Tribunal had prepared adraft statement dated 30.6.1998 and served the copy of the same onthe petitioner on 9.7.1998. Ext.P9 was issued after giving a hearing on7.8.1998. The reference application filed by the respondent for theassessment year 1994-95 was dismissed by the Tribunal vide orderdated 20.10.1998 and a copy of the same was served on the petitioneron 7.11.1998...” That being so, the petitioner himself admits that the copy of the draft statement was received by the petitioner on 9.7.1998 and7.11.1998 for the assessment years in question. Admittedly, thedraft statement did not contain the question of law in respect ofthe issue for which the petitioner sought benefit of the scheme. Itis admitted that the draft statement contains the question of lawdecided to be referred to the High Court and only corrections canbe carried out in the same. Therefore, as on the date of Ext.P11, o.p.13106/99 viz., 29.1.1999 no issue was pending consideration for which thepetitioner is seeking benefit under the Scheme. That being so, Ido not find any merit in the original petition and accordingly, thesame is dismissed. sdk+ That being so, the petitioner himself admits that the copy of the draft statement was received by the petitioner on 9.7.1998 and7.11.1998 for the assessment years in question. Admittedly, thedraft statement did not contain the question of law in respect ofthe issue for which the petitioner sought benefit of the scheme. Itis admitted that the draft statement contains the question of lawdecided to be referred to the High Court and only corrections canbe carried out in the same. Therefore, as on the date of Ext.P11, o.p.13106/99 viz., 29.1.1999 no issue was pending consideration for which thepetitioner is seeking benefit under the Scheme. That being so, Ido not find any merit in the original petition and accordingly, thesame is dismissed. sdk+ Sd/- S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.13106/99 S.SIRI JAGAN, J.================O.P.No. 13106 of 1999-I ================ J U D G M E N T 12[th] December, 2008