The Commissioner Of Income Tax, Chennai v. M/S.css Corp Pvt Ltd 6[Th] Floor, Ambit It Park

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.11.2020 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAMandTHE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN T.C.A.Nos.1005 & 1006 of 2019 The Commissioner of Income Tax,Chennai. ..Appellant in both T.C.AsVersus M/s.CSS Corp Pvt Ltd6[th] Floor, Ambit IT Park,No.32A & B, Ambit RoadAmbattur Industrial EstateChennai – 600 058PAN:AAECS2087A ..Respondent in both T.C.As Common Prayer:- Tax Case Appeal filed under Section 260-A of theIncome Tax Act, 1961, against the order of the Income TaxAppellate Tribunal, Madras 'B' Bench, Chennai made inI.T.A.No.2967/Chny/2018andI.T.A.No.2968/Chny/2018dated27.06.2019 relating to the Assessment Years 2004-05 and 2005-06respectively, and against the order dated 31.07.2018 made in ITANo. New No.84, 86 & 83/CIT(A)-I/2009-10, 2008-09 & 2009-10passed by the Commissioner of Income Tax (Appeals)-1, Chennaiand against the order dated 21.7.2009 and 30.12.2008 passed bythe Assistant Commissioner of Income Tax, Company Circle-I(3),Chennai-34, for the assessment year 2004-05 and 2005-06respectively. These appeals have been filed by the appellant/Revenue underSection 260 A of the Income Tax Act, 1961 ('the Act' forbrevity), is directed against the order dated 27.06.2019 passedby the Income Tax Appellate Tribunal, Madras 'B' Bench, Chennai('the Tribunal' for brevity) in I.T.A.No.2967/Chny/2018 and https://hcservices.ecourts.gov.in/hcservices/ I.T.A.No.2968/Chny/2018 for the Assessment Years 2004-05 and2005-06 respectively. These appeals were admitted on 09.12.2019on the following Substantial Questions of Law: “1.Whether on the facts and in the circumstancesof the case, the Tribunal ought to have applied theratio of the Hon'ble Apex Court decision in the caseof Himatasingike Seide reported in 48 Taxmann.com page357 where it had held that depreciation loss ofSection 10A/10B unit cannot be set off against theother income? (ii) Whether on the facts and in thecircumstances of the case, the Tribunal was right inholding that deduction u/s.10A and 10B is to beallowed without considering the carry forward lossespecially when it was held in the decision relied inthe case of Yokogawa India Limited that the deductionu/s.10A and 10B is to be allowed while computing grosstotal income of eligible undertaking under Chapter-IVof the Income Tax Act?” 2. We have heard M/s.Hemalatha, learned counsel appearingfor the appellant/Revenue and Mr.R.Sandeep Begamar, learnedcounsel 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 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 Appellate https://hcservices.ecourts.gov.in/hcservices/ Forum, 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 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 therespondent/assessee that the assessee has already filed thedeclarations under Section 4 of the Act on 12.05.2020. 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 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 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. 8. With this observation, the Tax Case Appeals standdisposed of with the aforementioned liberty and Consequently,the Substantial Questions of Law are left open. No costs. Sd/- Assistant Registrar(CS II) //True Copy// Sub Assistant Registrar To 1. The Income Tax Appellate Tribunal, 'B' Bench, Chennai. 'B' Bench, Chennai. 2. The Commissioner of Income Tax (Appeals)-I, Chennai. 3. The Assistant Commissioner of Income Tax, Company Circle-I(3), Chennai-34 Company Circle-I(3), Chennai-34 Copy to the Assistant Registrar, AE (Main) Section, High Court, Madras. High Court, Madras. +2cc to M/s.Sandeep Bagmer, Advocate, Sr.No.35758 & 35751 T.C.A.Nos.1005 & 1006 of 2019 rr ii (03/12/2020)