T.c.a v. Income Tax Officer,Ward I(2)Salem

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM and THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN T.C.A.No.33 of 2018 Smt.K Jayanthi.. Appellant Versus Income Tax Officer,Ward I(2)Salem .. Respondent Prayer:- Tax Case Appeal filed under Section 260-A of the IncomeTax Act, 1961, against the order of the Income Tax AppellateTribunal, Madras 'C' Bench, Chennai dated 11.07.2017 made inI.T.A.No.834/MDS/2015 relating to the Assessment Year 2004-05.Against the order of the Commissioner of Income Tax(Appeals)dated 29.01.2015 and made in ITA No.294/2006-07 and against theorder of the Income Tax Officer ward -I(2) Salem dated29.12.2006 for the assessment year 2004-2005. For Appellant: M/s.G.Vardini KarthikFor Respondent : M/s.M.Swaminathan Senior Standing counsel and M/s.V.Pushpa Junior Standing counsel JUDGMENT[Order of the Court was made by T.S.SIVAGNANAM, J.] This appeal has been filed by the assessee under Section 260A of the Income Tax Act, 1961 ('the Act' for brevity), isdirected against the order dated 11.07.2017 passed by the IncomeTax Appellate Tribunal, Chennai, 'C' Bench ('the Tribunal' forbrevity) in I.T.A.No.834/MDS/2015 for the Assessment Year 2004-05. The appeal has been filed, raising the following SubstantialQuestion of Law for consideration: “1. Whether the Appellate Tribunal was right inlaw in upholding an assessment which was done in grossviolation of the principles of natural justice, in as https://hcservices.ecourts.gov.in/hcservices/ much as the books of account impounded during surveywere not returned to the assessee, resulting in delayin filing the return? 2. Whether the Appellate Tribunal was right inholding the assessment done u/s 144 is valid, dehorsissuance of notice u/s 143(2)? 3. Whether the Tribunal was right in confirmingthe enhancement of the cost of construction by the CIT(A), when the matter was at no stage referred to theDepartment Valuation officer u/s 55A for obtaining avaluation report?” 2. We have heard M/s.G.Vardini Karthik, learned counselappearing for the appellant/assessee and Mr.M.Swaminathan,learned Senior counsel and M/s.V.Pushpa, learned Junior Standingcounsel for the respondent/Revenue. 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 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. 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 thecases, 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 per Section 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 theappellant/assessee that the assessee has already filed thedeclaration under Section 4 of the Act on 10.08.2020 and theassessee is ready and willing to pay the tax since theintimation is received from the Department. 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 Assistant Registrar/Income Tax Appellate Tribunal,'C' Bench, Chennai. 2.The Commissioner of Income Tax(Appeals) o/o The Commmissioner of Income Tax (Appeals) 3.The Income Tax Officer Ward -I(2), Salem 636 002. +1 cc to M/s.G.Vardini Karthik, Advocate Sr.No. 33997 T.C.A.No.33 of 2018MP(CO)RMP(24/11/2020)