The Principal Commissioner Of Income Tax 9, Chennai v. Kavitha Dilipkumar

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAMANDTHE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN The Principal Commissioner of Income Tax 9,Chennai .. Appellant/RespondentVersus Kavitha Dilipkumar.. Respondent/Appellant Prayer:- Tax Case Appeal filed under Section 260-A of the Income TaxAct, 1961, against the order of the Income Tax AppellateTribunal, Madras 'A' Bench, Chennai made in I.T.A.No.1802/Chny/2018 dated 06.12.2019 relating to the Assessment Years 2010-2011. Against the Order of the Commissioner of Income Tax(Appeals)-5, 121, Mahatma Gandhi Road, Nungambakkam, Chennai-600034,dated21.03.2018ITA.No.88/CIT(A)-5/2017-2018.PAN/No. for the Assessment Year 2010-11 and againstthe Order of the Income Tax Officer, Non Corporate Ward-5(1),Chennai dated 30.10.2017 PAN. ward/circle ITO,Non corporate ward-5(1), Chennai status individual for theAssessment year 2010-11. For Respondent : No Appearance This appeal has been filed by the Appellant/Revenue underSection 260 A of the Income Tax Act, 1961 ('the Act' forbrevity), is directed against the order dated 06.12.2019 passedby the Income Tax Appellate Tribunal, Madras 'A' Bench, Chennai('the Tribunal' for brevity) in I.T.A.No.1802/Chny/2018 for theAssessment Year 2010-2011. This appeal was admitted on23.07.2020 on the following Substantial Questions of Law: https://hcservices.ecourts.gov.in/hcservices/ “(i) Whether on the facts and in thecircumstances of the case, the Tribunal was right insetting aside the order passed by the AssessingOfficer for re-examination, especially when theassessing officer had duly examined all the materialon record in great depth while framing the assessmentorder ? (ii) Whether on the facts and in thecircumstances of the case, the Tribunal was rightin remitting the issue back to the file of theAssessing Officer by quoting the decision in thecase of Kanhaiyalal and Sons (HUF) inITA.No.1849/Chny/2014 wherein the onus has beenshifted to the revenue with a direction that theAssessing Officer is to bring on record the role ofthe Assessee in promoting the Company and therelation of the Assessee if any with that of thepromoters and role of inflating of prices etc whichexercise had already been done by the AO whileframing the assessment order ?(iii) Is not the finding of the Tribunalperverse especially when the decision of the Tribunalis contrary to the time tested Principal that theperson who asserts a fact has to discharge the initialburden cast upon him to show that the said facts aretrue and only thereafter the burden would shift to thedepartment ?” 2. We have heard Mr.T.Ravikumar, learned Senior StandingCounsel appearing for the Appellant/Revenue and there is norepresentation 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 in 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 in respect 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 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/Revenue that the assessee has already filed thedeclaration under Section 4 of the Act on 03.06.2020. 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 Appeal stand disposed ofon the ground that the assessee has already filed a declarationand the Department shall process the application at the earliestin accordance with the said Act and communicate the decision tothe assessee at the earliest. As observed, the assessee is givenliberty to restore these appeal in the event the ultimatedecision to be taken on the declaration filed by the assesseeunder Section 4 of the said Act is not in favour of theassessee. If such a prayer is made, the Registry shall entertainthe prayer without insisting upon any application to be filedfor condonation of delay in restoration of the appeals and onsuch request made by the assessee by filing a MiscellaneousPetition for Restoration, the Registry shall place such petitionbefore 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 To 1.The Income Tax Appellate Tribunal,'A' Bench, Chennai.2.The Commissioner of Income Tax (Appeals)-5,121-Mahatma Gandhi Road, Nungambakkam,Chennai-600 034.3.The Income Tax Officer,Non-Corporate Ward 5(1),Chennai.4.The Commissioner of Income Tax,Chennai.+1cc to Mr.T.Ravikumar, Advocate, S.R.No.41618T.C.A.No.184 of 2020AD(CO)CS/03/02/2021