T.c.a v. The Income Tax Officer Non Corporate Ward - 17 (3) Chennai - 600 034

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.357 of 2018 Smt.Pushpakala Harirajan ... AppellantVs. The Income Tax OfficerNon Corporate Ward - 17 (3)Chennai - 600 034. ... Respondent Tax Case Appeal filed under Section 260-A of the Income TaxAct, 1961, against the order of the Income Tax AppellateTribunal, 'C' Bench, Chennai, dated 12.06.2017 made inI.T.A.No.64/Mds/2017 relating to the Assessment Year 2013 – 2014against the order dated 21.11.2016 made in ITA No.141/CIT(A)-5/15-16. On the file of the commissioner of Income Tax(Appeals)-5 Chennai-34 for the assessment year 2013-14 againstthe order dated 31/12/2015 made in pon/Gir No.AEWPP2363M on theIncome Tax Officer non-corporate ward-017(3), Chennai for theassessment year 2013-2014. For Appellant : Mr.R.Sivaraman For Respondent : M/s.R.Hemalatha Senior Standing Counsel JUDGMENT This appeal has been filed by the Assessee under Section260 A of the Income Tax Act, 1961 ('the Act' for brevity),challenging the order dated 12.06.2017 passed by the Income TaxAppellate Tribunal, 'C' Bench ('the Tribunal' for brevity) inI.T.A.No.64/Mds/2017 for the Assessment Year 2013 - 2014. Theappeal was admitted on 19.12.2018 on the following SubstantialQuestions of Law : https://hcservices.ecourts.gov.in/hcservices/ “i. Whether on the facts and thecircumstances of the case the Appellate Tribunalwas right in law in denying the Appellant thebenefit of deduction of Rs.55,25,000/- u/s 54 ofthe Income Tax Act, on Long Term Capital Gain onsale of the residential property? ii. Whether on the facts and thecircumstances of the case the Appellate Tribunalwas right in law in holding that the DwellingUnit constructed by the Appellant is nothabitable for human residence and therefore theAppellant is not entitled for claim of exemptionu/s 54?” 2. We have heard Mr.R.Sivaraman, learned counsel appearingfor the appellant/assessee and M/s.R.Hemalatha, Learned SeniorStanding Counsel 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. 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) or https://hcservices.ecourts.gov.in/hcservices/ 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) or https://hcservices.ecourts.gov.in/hcservices/ before 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 theappellant/assessee that already the declaration has been filedby the assessee and Form III has been issued. 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 declarations 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 stands disposed ofwith the aforementioned liberty and Consequently, theSubstantial Questions of Law are left open. No costs. Sd/- Assistant Registrar(CS VII)//True Copy// Sub Assistant Registrar SsdTo 1. The Income Tax Appellate Tribunal, 'C' Bench, Chennai. 'C' Bench, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2. Commissioner of Income Tax (Appeals)-5, Chennai – 34. Chennai – 34. 3. The Income Tax Officer, Non-Corporate Ward-17(3), Chennai. Non-Corporate Ward-17(3), Chennai. 4. The Assistant Registrar, Appeal Examiner Main Section, High Court, Madras-104. CO(GMR)BDL/20/01/2021 T.C.A.No.357 of 2018