Wp/14710/2018 Of Mangesh D. Ganore v. The Principal Commissioner Of Income Tax - 1, Nashik And Ors

6. wp-14709-14710-2018.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYAPPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 14709 OF 2018 Umesh D. Ganore..Petitioner.v/s.The Principal Commissioner of Income Tax-1Nashik & Others ..Respondents. WITH WRIT PETITION NO.14710 OF 2018 Mangesh D. Ganore..Petitioner.v/s.The Principal Commissioner of Income Tax-1Nashik & Others .. Respondents. Mr. Mihir Naniwadekar with Mr. Rohan Deshpande and Ms. Alisha Pinto, for the Petitioner in both the Petitions.Mr. Sham Walve, for Respondent Nos. 1 and 2 in both the Petitions. CORAM: AKIL KURESHI & M.S.SANKLECHA, JJ.DATE : 8[th] MARCH, 2019. ORAL JUDGMENT : (Per Akil Kureshi, J.) 1.These Petitions involve common question of law. They havebeen heard together and would be disposed of by this common judgment.For convenience, we may record facts from Writ Petition No.14709 of2010. 2 Petitioner is an individual. Petitioner has challenged a 6. wp-14709-14710-2018.odt decision of the Revenue-Authority in not accepting the Petitioner'sdeclaration under Income Tax Declaration Scheme, 2016 (herein afterreferred to as Scheme of 2016). Petitioner has further challenged the re-assessment notices issued by the Assessing Officer for the assessmentyears covered under such declaration as well as orders of assessmentpassed pursuant to such notices. Petitioner has also challenged notices forprosecution issued by the competent authority under Section 276CC ofthe Income Tax Act, 1961 (in short “the Act”). 3The Union Legislature framed said Scheme under Section 183of the Finance Act, 2006, giving an opportunity to the assessees to makedeclarations under the said Scheme of undisclosed income. Subject to thedeclarant fulfilling the conditions contained in the said Scheme andacceptance of the declaration by the authority, the declarant would bespared the penalty and prosecution. We would advert to the provisions ofthe said Scheme in detail later. 4The Petitioner, desirous of taking benefit of the said Schememade a common declaration of undisclosed income for the AssessmentYears 2011-12 to Assessment Years 2014-15 on 29[th] September, 2016. ThePetitioner declared his un-disclosed income for the subject AssessmentYears, as under:- 6. wp-14709-14710-2018.odt 5It is undisputed that on such declaration, the Petitioner hadto pay tax, surcharge and penalty at the rates prescribed under the saidScheme, which worked out as under:- “(i)Tax payable @ 30% of undisclosed income – Rs.54,36,156/-.Rs.54,36,156/-. (ii)Surcharge payable @ 25% of tax – Rs.13,59,039/-(iii)Penalty payable @ 25% of tax – Rs.13,59,039/-.”(iii)Penalty payable @ 25% of tax – Rs.13,59,039/-.” 6According to the Petitioner, he had already paid a sum ofRs.8,19,465/- to the Income Tax Department by way of advance tax, selfassessed tax and tax deducted at source. Out of the said sum ofRs.81,54,233/-, therefore, after deducting said sum of Rs.8,19,465/- thePetitioner had to pay the remaining of R.73,34,770/-. The Petitioner madesuch payment on different dates as under:- “(i) An amount of Rs.18,33,690/- was paid on November 25, 2016 i.e. before the prescribed date of November 30, 2016;2016 i.e. before the prescribed date of November 30, 2016;(ii)An amount of Rs.18,33,690/- was paid on March 27, 2017, i.e. before the prescribed date of March 31, 2017;2017, i.e. before the prescribed date of March 31, 2017; (iii)Lastly, the balance amount of Rs.36,67,385/-was paid on September 27, 2017.”September 27, 2017.” 7We may note that, the total amount paid by the Petitioner asnoted above along with the said sum of Rs.8,19,465/- was short byRs.4/- as compared to the requirement arising under the said Scheme.Petitioner points out that this short fall of sum of Rs.4/- was on account ofS.R.JOSHI / R.M. AMBERKAR3 6. wp-14709-14710-2018.odt “(i) An amount of Rs.18,33,690/- was paid on November 25, 2016 i.e. before the prescribed date of November 30, 2016;2016 i.e. before the prescribed date of November 30, 2016;(ii)An amount of Rs.18,33,690/- was paid on March 27, 2017, i.e. before the prescribed date of March 31, 2017;2017, i.e. before the prescribed date of March 31, 2017; (iii)Lastly, the balance amount of Rs.36,67,385/-was paid on September 27, 2017.”September 27, 2017.” 7We may note that, the total amount paid by the Petitioner asnoted above along with the said sum of Rs.8,19,465/- was short byRs.4/- as compared to the requirement arising under the said Scheme.Petitioner points out that this short fall of sum of Rs.4/- was on account ofS.R.JOSHI / R.M. AMBERKAR3 6. wp-14709-14710-2018.odt pure oversight and calculation error and should not be allowed to defeatthe Petitioner's declaration under the said Scheme since the same wasotherwise in order in all respects. 8We may record that, this short fall of Rs.4/- was not thecentral controversy between the two sides. In other words, had this beenthe only ground for rejecting Petitioner's declaration, we would havereadily granted relief to the Petitioner as prayed. While examining thelegal dispute between the two sides, we would eliminate this factor ofshort fall of Rs.4/-. 9The controversy between the Petitioner and the department ismuch deeper and revolves around Petitioner's claim that, advance tax, selfassessed tax and TDS paid by the Petitioner prior to filing of declaration,should be adjusted towards discharge of the Petitioner's liability to paytax, surcharge and penalty under the said Scheme. The departmentcontends states that such adjustment can be made only in relation to thetax deducted at source, if the co-relation between such TDS and thedeclaration of undisclosed income under the Scheme can be established. 10There is another angle to this controversy. Counsel for thePetitioner pointed out that, in relation to Assessment Years 2011-12 and2012-13, the amounts deposited by the Petitioner would be sufficient asper the requirements of the said Scheme, even ignoring the Petitioner'smain contention of adjustment of advance tax and self assessed tax, sincein these years, the Petitioner does not claim benefit of either advance taxor self assessment tax. The department contends that, the declaration of 6. wp-14709-14710-2018.odt an assessee under the said Scheme would be composite and not-severablefor different Assessment Years. Once the Petitioner has made such adeclaration for several Assessment Years, said declaration would either tobe accepted in its entirety or rejected in toto. In other words, according tothe Department, the Petitioner can not claim the benefit of the declarationin relation to only some of the Assessment Years, covered under suchdeclaration. 11We have heard the learned Counsel for the parties at length.Learned Counsel Shri Naniwadekar, for the Petitioner contended that:-Learned Counsel Shri Naniwadekar, for the Petitioner contended that:- (i)there is nothing in the said Scheme, refusing the adjustments of theadvance tax and self assessment tax. The Scheme grantedbenefit to a declarant. Such beneficial provision should beinterpreted in such a manner that the purpose of framing theScheme is not lost;advance tax and self assessment tax. The Scheme grantedbenefit to a declarant. Such beneficial provision should beinterpreted in such a manner that the purpose of framing theScheme is not lost; 11We have heard the learned Counsel for the parties at length.Learned Counsel Shri Naniwadekar, for the Petitioner contended that:-Learned Counsel Shri Naniwadekar, for the Petitioner contended that:- (i)there is nothing in the said Scheme, refusing the adjustments of theadvance tax and self assessment tax. The Scheme grantedbenefit to a declarant. Such beneficial provision should beinterpreted in such a manner that the purpose of framing theScheme is not lost;advance tax and self assessment tax. The Scheme grantedbenefit to a declarant. Such beneficial provision should beinterpreted in such a manner that the purpose of framing theScheme is not lost; (ii)Counsel submitted that, the CBDT itself has clarified under aCircular No.25 of 2016 dated 30[th] June, 2016 that the benefit ofTDS would be available for making payment under the saidScheme. There is no rationale why similar treatment should not begiven to the advance tax and self assessed tax.Circular No.25 of 2016 dated 30[th] June, 2016 that the benefit ofTDS would be available for making payment under the saidScheme. There is no rationale why similar treatment should not begiven to the advance tax and self assessed tax. (iii)Counsel took us through the provisions of the Scheme, the Rulesframed by the legislature under the said Scheme and prescribedformat for making declaration to contend that, there is clearintention on the part of the legislature to grant such adjustments.framed by the legislature under the said Scheme and prescribedformat for making declaration to contend that, there is clearintention on the part of the legislature to grant such adjustments. (iv)Counsel sought to distinguish earlier similar income declarationschemes which contained a specific bar against any adjustment oftaxes paid in the past. In this context, the Counsel also sought toschemes which contained a specific bar against any adjustment oftaxes paid in the past. In this context, the Counsel also sought to 6. wp-14709-14710-2018.odt distinguish the decision of Division Bench of this Court in EarnestBusiness Services Pvt. Ltd. v/s. Commissioner of Income Tax andOthers reported in 393 ITR 453, which was rendered in thecontext of the Voluntary Disclosure of Income Scheme, 1977 (inshort “VDIS”); (v)Counsel placed reliance on the decision of the Division Bench of theDelhi High Court in Kumudam Publications Pvt. Ltd., v/s. CBDTreported in 393 ITR 599, in which, in the context of the presentScheme, Delhi High Court held that adjustment of advance taxand self assessment tax would be permissible; 12On the other hand, learned Counsel Shri Walve, for theRevenue opposed the Petitions, contending that:-(i)The said Scheme makes special provisions for disclosure ofundisclosed income. The same must be construed strictly ;Revenue opposed the Petitions, contending that:-(i)The said Scheme makes special provisions for disclosure ofundisclosed income. The same must be construed strictly ; (ii)The Scheme does not envisage any adjustment of the past taxes asis sought to be done in the present case by the assessee;is sought to be done in the present case by the assessee; (iii)Heavy reliance was placed on the decision of this Court in case ofEarnest Business Services Pvt. Ltd., (supra). It was argued thatin the said decision, this Court has laid down certain importantprinciples which have direct applicability in the present case;Earnest Business Services Pvt. Ltd., (supra). It was argued thatin the said decision, this Court has laid down certain importantprinciples which have direct applicability in the present case; (iv)Counsel submitted that, in any case, the Petitioner cannot segregatethe declaration since the Scheme does not envisaged any suchsegregation.the declaration since the Scheme does not envisaged any suchsegregation. 13Having heard the learned Counsel for the parties, we mayfirst take note of the provisions of the said scheme. (iii)Heavy reliance was placed on the decision of this Court in case ofEarnest Business Services Pvt. Ltd., (supra). It was argued thatin the said decision, this Court has laid down certain importantprinciples which have direct applicability in the present case;Earnest Business Services Pvt. Ltd., (supra). It was argued thatin the said decision, this Court has laid down certain importantprinciples which have direct applicability in the present case; (iv)Counsel submitted that, in any case, the Petitioner cannot segregatethe declaration since the Scheme does not envisaged any suchsegregation.the declaration since the Scheme does not envisaged any suchsegregation. 13Having heard the learned Counsel for the parties, we mayfirst take note of the provisions of the said scheme. (a)The Scheme is contained in Chapter IX of the Finance Act, 2016. 6. wp-14709-14710-2018.odt Section 182 contained in such Chapter defines certain terms for thepurpose of the said Scheme. The declarant under clause (a) – means the person making the declaration under sub-section (1) of Section 183. Clause (c) of Section 182 provides that all otherwords and expressions which are not defined in the said Chapterbut defined in the Act would have the same meaning as assigned in the Act; Section 183 of the Act pertains to declaration of undisclosedincome. A person desirous of making such a declaration ofundisclosed income would make a declaration as provided in sub-section (1) of Section 183 of the Act, which reads as under:- “183.(1)Subject to the provisions of this Scheme, any personmay make, on or after the date of commencement of this Schemebut before a date to be notified by the Central Government in theOfficial Gazette, a declaration in respect of any incomechargeable to tax under the Income Tax Act for any assessmentyear prior to the assessment year beginning on the 1[st] day ofApril, 2017- (a)for which he has failed to furnish a return under section139 of the Income tax Act; (b)which he has failed to disclose in a return of incomefurnished by him under the Income Tax before the date ofcommencement of this Scheme; (c)which has escaped assessment by reason of the omission orfailure on the part of such person to furnish a return under theIncome Tax Act or to disclose fully and truly all material factsnecessary for the assessment or otherwise." Under sub-section (1) of Section 184 of the Act, theundisclosed income as declared under Section 183 of the Act would bechargeable to tax and surcharge as prescribed in the said provision.Section 184 reads as under:- 6. wp-14709-14710-2018.odt “184(1)Notwithstanding anything contained in the IncomeTax Act or in any Finance Act, the undisclosed income declaredunder section 183within the time specified therein shall bechargeable to tax at the rate of thirty per cent of suchundisclosed income. (2)The amount of tax chargeable under sub-section(1) shall be increased by a surcharge, for the purpose of theUnion, to be called the Krishi Kalyan Cess on tax calculated atthe rate of twenty five per cent of such tax so as to fulfill thecommitment of the Government for the welfare of the farmers.” Section 185 of the Act pertains to penalty and reads as under:- “185:-Notwithstanding anything contained in the IncomeTax Act or in any Finance Act, the person making a declarationof undisclosed income shall in addition to tax and surchargeunder Section 184, be liable to penalty at the rate of twenty fivepercent of such tax.” (2)The amount of tax chargeable under sub-section(1) shall be increased by a surcharge, for the purpose of theUnion, to be called the Krishi Kalyan Cess on tax calculated atthe rate of twenty five per cent of such tax so as to fulfill thecommitment of the Government for the welfare of the farmers.” Section 185 of the Act pertains to penalty and reads as under:- “185:-Notwithstanding anything contained in the IncomeTax Act or in any Finance Act, the person making a declarationof undisclosed income shall in addition to tax and surchargeunder Section 184, be liable to penalty at the rate of twenty fivepercent of such tax.” Section 186 pertains to the manner of declaration. Section 187 ofthe Act lays down the time frame for making payment of the tax. Sub-section (1) of Section 187 of the Act provides that tax, surcharge andpenalty payable under Sections 184 and 185 of the Act in respect ofundisclosed income shall be paid on or before the date to be notified bythe Central Government. Sub-section (3) of Section 187 of the Actprovides that, if the declarant tails to pay the tax, surcharge and penaltybefore the due date as specified in sub-section (1), the declaration filed byhim shall be deemed never to have been made under the Scheme. Section 188 of the Act pertains to undisclosed income declared notto be included in the total income and reads as under:- “188:-The amount of undisclosed income declared inaccordance with section 183 shall not be included in the totalincome of the declarant for any assessment year under the IncomeTax Act, if the declarant makes the payment of tax and surcharge 6. wp-14709-14710-2018.odt referred to in Section 184 and the penalty referred to in section185, by the date specified under sub-section (1) of section187.” Section 189 of the Act provides that a declarant under the saidScheme shall not be entitled in respect of undisclosed income declared orany amount of tax or surcharge paid to re-open any assessment or re-assessment made under the Income Tax Act or the Wealth Tax Act orclaiming any set off or relief in any appeal in other proceedings in relationto any such assessment or re-assessment. Section 191 of the Act provides that any amount of tax andsurcharge or penalty paid by the declarant under Section 183 of the Actshall not be refundable. Section 193 of the Act provides that where a declaration has beenmade by misrepresentation or suppression of facts, such declaration shallbe void and shall be deemed never to have been made under the Scheme. Section 195 of the Scheme retains applicability of provisionscontained in the said Act, including Section 119 in relation to the saidscheme. Section 197 of the Act inter alia provides that, for removal ofdoubts, it is declared that where any declaration has been made underSection 183 but no tax, surcharge and penalty referred to in section 184 andsection 185 has been paid within the time specified under section 187, theundisclosed income shall be chargeable to tax under the Income tax Act inthe previous year in which such declaration is made. 14Analysis of the above provisions of the Scheme would clearlyestablish that the Scheme is a complete code in relation to the declarationof undisclosed income by the Assessee. A declaration would be made as 6. wp-14709-14710-2018.odt Section 195 of the Scheme retains applicability of provisionscontained in the said Act, including Section 119 in relation to the saidscheme. Section 197 of the Act inter alia provides that, for removal ofdoubts, it is declared that where any declaration has been made underSection 183 but no tax, surcharge and penalty referred to in section 184 andsection 185 has been paid within the time specified under section 187, theundisclosed income shall be chargeable to tax under the Income tax Act inthe previous year in which such declaration is made. 14Analysis of the above provisions of the Scheme would clearlyestablish that the Scheme is a complete code in relation to the declarationof undisclosed income by the Assessee. A declaration would be made as 6. wp-14709-14710-2018.odt provided under sub-section (1) of Section 183. The liability of an assesseeupon such declaration would be computed for payment of tax andsurcharge as prescribed in sub-section (1) and (2) of Section 184 andpenalty under Section 185 of the Act. Such amount would be depositedwithin the time prescribed by the Government of India as envisaged insub-section (1) of Section 187 of the Ac. Scheme also contains provisionsfor the consequence of the declaration being accepted as well as thecircumstances, under which, said declaration would be rendered non-estas also the consequences thereof. To appreciate the Petitioner's contentionof the adjustment of advance tax and self assessed tax, therefore, may beseen in light of such provisions of the Scheme. 15While doing so, we must notice yet another aspect, emergingfrom the Scheme. As noted, upon the declaration of undisclosed incomebeing made, liability to pay tax with surcharge arises under Section 184and that of penalty under Section 185. Both these Sections start withthe non-obstinate clause providing that notwithstanding anythingcontained in the Income Tax Act, or any Finance Act, the undisclosedincome would be charged to tax at rates specified therein and thedeclarant would be liable to pay the penalty as per the prescribed rates.In other words, Sections 184 and 185 of the Act which are chargingprovisions of tax, surcharge and penalty respectively are concerned. 16This Court in case of Earnest Business Services Pvt. Ltd.,(supra) in the context of the VDIS had brought out such distinction. It wasa case, in which, assessee claimed benefit of TDS for depositing the taxand penalty liability, arising out the declaration under the VDIS 1997. The 6. wp-14709-14710-2018.odt Court referred to Section 64 of the said Scheme which pertain to charge oftax on voluntarily disclosed income and held and observed as under:- “We note that the Scheme is a part of the Finance Act,1997 and it is self contained. The Scheme of 1997 Act is adifferent and distinct statute from the 1961 Act. The subjectmatter of tax and rate of tax are different under the Scheme of1997 Act and under the 1961 Act. Therefore, even though thetax which is payable under the Scheme of 1997 Act, is a tax onincome, it is not a charge to tax under Section 4 of the 1961Act,but an income tax charged to tax under section 64 of theScheme of 1997 Act. 6. wp-14709-14710-2018.odt Court referred to Section 64 of the said Scheme which pertain to charge oftax on voluntarily disclosed income and held and observed as under:- “We note that the Scheme is a part of the Finance Act,1997 and it is self contained. The Scheme of 1997 Act is adifferent and distinct statute from the 1961 Act. The subjectmatter of tax and rate of tax are different under the Scheme of1997 Act and under the 1961 Act. Therefore, even though thetax which is payable under the Scheme of 1997 Act, is a tax onincome, it is not a charge to tax under Section 4 of the 1961Act,but an income tax charged to tax under section 64 of theScheme of 1997 Act. As held by the Supreme Court in Mathuram Agarwalv/s. State of MP [1998] 8 SCC 667, a taxing statute shouldconvey three components of a taxing statute, i.e. person to betaxed, subject matter of tax and rate of tax. Undisputedly, thesubject matter and rate of tax in the case of Scheme of 1997Act is different from that of the 1961 Act. The subject matter oftax in case of the above Scheme as evident from the charge oftax therein is on voluntarily disclosed income, which thoughchargeable to tax under the 1961 Act, had not been disclosedearlier thereunder. The charge under the 1961 Act is on thetotal income of the previous year and the scope of the totalincome is income received/ deemed to be received/ accrued/arises during the previous year. As against the above, thecharge under the Scheme of 1997 Act, is the undisclosedincome under the 1961 Act which is voluntarily disclosed.There is no obligation under the Scheme of 1997 Act that everyperson who has not disclosed his income under the 1961 Act isrequired to disclose ad pay taxes. It is optional. This unlikethe 1961 Act, which obliges every person by whom tax ispayable to disclose and pay the tax payable on its income atthe peril of penalty and prosecution, if income is not disclosedand taxes thereon not paid. Similarly, the rate of tax is alsodifferent under the 1961 Act from that under the Scheme of1997 Act. In fact, it is one flat rate and not at progressive rateas under the 1961 Act. Therefore, as the tax payable under theScheme is different and distinct from the tax payable under the1961 Act, the benefit of tax paid on the undisclosed income asand by way of tax deduction at source under the 1961 Act, 6. wp-14709-14710-2018.odt cannot be availed under the Scheme. This is also evident fromsection 64 of the Scheme providing “notwithstanding anythingcontained in the Income Tax Act or Finance Act, income shallbe charged in respect of income so declared...” Thus, thecharge is different.” 17It is undisputed that the Scheme does not make any specificprovision for adjustment of any of the pre-deposited taxes such as advancetax or self assessment tax or even tax deducted at source. 6. wp-14709-14710-2018.odt cannot be availed under the Scheme. This is also evident fromsection 64 of the Scheme providing “notwithstanding anythingcontained in the Income Tax Act or Finance Act, income shallbe charged in respect of income so declared...” Thus, thecharge is different.” 17It is undisputed that the Scheme does not make any specificprovision for adjustment of any of the pre-deposited taxes such as advancetax or self assessment tax or even tax deducted at source. 18.The analysis of the scheme would show that in absence ofsuch a scheme, an assessee who has intentionally not disclosed an income,would be subject to the normal provisions under the Act for assessment,levy of tax, interest and penalty. Without there being any specificprovision in the scheme granting benefit of tax voluntarily paid, ordeposited as self-assessed tax or by way of advance tax, a declarant underthe scheme cannot claim set off such tax against his liability to pay tax interms of the provisions contained in the scheme. When as in the presentcase, the assessee was either depositing or paying such tax, the saidscheme was nowhere in horizon. The said scheme makes specialprovisions for declaration of undisclosed income under Section 187 whichprovides for the time frame for deposit of tax, surcharge and penalty.Immediately preceding Section 188 provides that the amount ofundisclosed income declared would not be included in the total income ofthe declarant in any assessment year under the Income Tax Act, 1961.Section 184 provides that the declarant under the said scheme shall notbe entitled in respect of undisclosed income declared or any amount of taxand surcharge paid to reopen the assessment or reassessment under theIncome Tax Act or the Wealth Tax Act. Section 191 provides that anyS.R.JOSHI / R.M. AMBERKAR12 6. wp-14709-14710-2018.odt amount of tax and surcharge and penalty paid pursuant to the declarationshall not be refundable. Thus, the scheme makes clear demarcationbetween an undisclosed income declared under the said scheme and theassessment of the assessee's declared income under the Income Tax Act,1961. Therefore, in absence of any specific provision in the scheme,granting benefit of the self assessed tax or advance tax under the Act, forthe purpose of discharging the assessee's liability under the said scheme,the same cannot be readily presumed. 19.To reiterate these provisions provided for two separatecompartments between the assessment proceedings under the said Actand declaration of undisclosed income under the said scheme. The selfassessed tax and advance tax would be adjusted against an assessee'sliabilities arising in the assessment under the said Act and cannot betransposed for the purpose of discharging the liability to pay tax,surcharge or penalty by a declarant of undisclosed income under the saidscheme. 20.The reference to the Rules or the formant for makingdeclaration or payment would not change this provision. Nothingcontained in the Rules or the formats prescribed therein would indicateany intention on the part of the legislature to grant the benefit of advancetax or self assessed tax for the purpose of the said scheme. In any case,such right had to be recognized under the Act and cannot be interpretedon the strength of prescribed formants for making declaration. We areconscious that CBDT Circular dated 30.6.2016 has clarified the provisionin relation to the tax deducted at source, providing that adjustment under 6. wp-14709-14710-2018.odt 20.The reference to the Rules or the formant for makingdeclaration or payment would not change this provision. Nothingcontained in the Rules or the formats prescribed therein would indicateany intention on the part of the legislature to grant the benefit of advancetax or self assessed tax for the purpose of the said scheme. In any case,such right had to be recognized under the Act and cannot be interpretedon the strength of prescribed formants for making declaration. We areconscious that CBDT Circular dated 30.6.2016 has clarified the provisionin relation to the tax deducted at source, providing that adjustment under 6. wp-14709-14710-2018.odt the scheme would be permissible in cases where relation between theincome declared under the scheme and the advance tax can beestablished and such tax has not been claimed in the return of incomefiled for any assessment year. This clarification made by the CBDT wouldneither indicate that the legislature while framing the scheme envisagedthe adjustment of other taxes namely the advance tax or self assessed tax,nor would state different treatments given to the two kinds of taxesrendered the provisions of the said scheme ultra virus, the constitutionbeing in violation of Article 14 of the Constitution. The CBDT exercisesits power vested under Section 119 of the Act. As is well settled, it iswithin the power of CBDT to issue clarifications for reducing the rigors ofthe statutory provisions. Even otherwise the very nature of tax deductedat source is different from the other two categories namely advance taxand self assessment tax, since tax deducted at source is always relatable tocertain income which the assessee would disclose under the said scheme. 21.We have perused the decision of the Delhi High Court in thecase of Kumudam Publications Pvt Ltd (supra). The judgment mainlyproceeds on the basis of the clarification of CBDT Circular dated30.6.2016. After taking note of the said clarification, the Court expressedan opinion that the Revenue had made such a clarification which wouldpreclude it from arguing that the advance tax payments in relation to thedeclaration covered in this scheme cannot be taken into consideration.The Court observed as under:- "14.Furthermore, the court also is of the opinion that the clarificationby the Revenue, that credit for tax deducted at source paid, can beenjoyed for availing the benefit (under the scheme in question) precludesany meaningful argument by it that advance tax payments relative for the 6. wp-14709-14710-2018.odt assessment years covered by the declaration cannot be taken intoconsideration as payments under and for purposes of availing the benefitsof the scheme." We are in respectful disagreement with the view of the Delhi HighCourt in the said case of Kumudam Publications Pvt Ltd. We have givenour separate reasons for not accepting the petitioner's contention in thisrespect. The petitioners main challenge, therefore, must fail. 22.The subsidiary issue of the segregation of the declaration stillsurvives. The provisions contained in the scheme enable the assessee todisclose undisclosed income. There is no provision in the scheme whichrequires the declarant to make a composite declaration in relation toseveral assessment years for which he desirous to make a declaration ofundisclosed income. The scheme does not prohibit multiple declarationsby the assessee, making separate declarations for different assessmentyears. Under these circumstances, we do not find any provision under thesaid scheme requiring competent authority to either accept or reject thedeclaration in respect of several assessment years in entirety. In otherwords, if the declaration of the assessee of undisclosed income for theparticular assessment year fulfills all requirement of the scheme, there isno reason why such a declarant should not get benefit of such declarationsimply because in relation to other assessment years, the declaration mayfail for any reason. 23.Sum total of this discussion would be that in relation to thoseassessment years where the petitioner relied on the adjustment of selfassessed tax or advance tax for making good, the requirement of 6. wp-14709-14710-2018.odt depositing tax, surcharge and penalty under the scheme, the declarationmust fail and the action of the Revenue Authorities must be confirmed. Inrelation to those assessment years where without any adjustment ofadvance tax or self assessed tax, deposits made by the petitioner weresufficient to cover the tax, surcharge and penalty under the scheme by thedue dates, such declaration must be accepted. 24.In the second petition, barring change in figures, all relevantfacts are identical. We have, therefore, not discussed the facts separately. 25.The petitions are, therefore, disposed of with following directions :- (i) In Writ Petition No. 14709 of 2018, the petitioner'sdeclaration under the Scheme for assessment years 2013-14and 2014-15 would fail. Action of the Revenue Authority isconfirmed;declaration under the Scheme for assessment years 2013-14and 2014-15 would fail. Action of the Revenue Authority isconfirmed; (ii) In Writ Petition No. 14710 of 2018, the petitioner'sdeclaration for assessment years 2011-12 and 2012-13 wouldbe accepted by the department. Necessary certificate wouldbe issued accordingly. Consequently, orders of reassessmentin relation to those assessment years and the notices ofprosecution would stand set aside;declaration for assessment years 2011-12 and 2012-13 wouldbe accepted by the department. Necessary certificate wouldbe issued accordingly. Consequently, orders of reassessmentin relation to those assessment years and the notices ofprosecution would stand set aside; (iii) In Writ Petition No. 14710 of 2018, the petitioner'sdeclaration for assessment years 2011-12 and 2014-15 wouldfail. The action of the Revenue Authority stands confirmed;declaration for assessment years 2011-12 and 2014-15 wouldfail. The action of the Revenue Authority stands confirmed; 6. wp-14709-14710-2018.odt (iv) In Writ Petition No. 14710 of 2018, the petitioner'sdeclaration for assessment years 2012-13 and 2013-14 wouldbe accepted by the department. Necessary certificate shall beissued. Consequently, reassessment order in relation to thoseassessment years and prosecution notice would stand setaside;declaration for assessment years 2012-13 and 2013-14 wouldbe accepted by the department. Necessary certificate shall beissued. Consequently, reassessment order in relation to thoseassessment years and prosecution notice would stand setaside; (v) Since the petitioner was bona fide pursuing the remediesbefore this Court in this petition, if the petitioner files aappeals before the Appellate Commissioner in relation tothose assessment years where the petitioner has failed, latestby 30th April, 2019, such appeals would be considered onmerits without objection on limitation;before this Court in this petition, if the petitioner files aappeals before the Appellate Commissioner in relation tothose assessment years where the petitioner has failed, latestby 30th April, 2019, such appeals would be considered onmerits without objection on limitation; (vi) At this stage, learned counsel for the petitioner argued that inrelation of those assessment years where the declarant hasfailed, amount deposited by the petitioner be returned. Thesaid ground was never argued nor any prayer is made for suchpurpose and therefore, we do not entertain the same leaving itopen for the petitioner to pursue the remedies under the law.relation of those assessment years where the declarant hasfailed, amount deposited by the petitioner be returned. Thesaid ground was never argued nor any prayer is made for suchpurpose and therefore, we do not entertain the same leaving itopen for the petitioner to pursue the remedies under the law. 26. Both the petitions are disposed of. (vi) At this stage, learned counsel for the petitioner argued that inrelation of those assessment years where the declarant hasfailed, amount deposited by the petitioner be returned. Thesaid ground was never argued nor any prayer is made for suchpurpose and therefore, we do not entertain the same leaving itopen for the petitioner to pursue the remedies under the law.relation of those assessment years where the declarant hasfailed, amount deposited by the petitioner be returned. Thesaid ground was never argued nor any prayer is made for suchpurpose and therefore, we do not entertain the same leaving itopen for the petitioner to pursue the remedies under the law. 26. Both the petitions are disposed of. [ M.S. SANKLECHA, J. ] [ AKIL KURESHI, J ]