Wp/5911/2015 Of Mr.s.jaganathan v. The Commissioner Of Income Tax

1 IN THE HIGH COURT OF KARNATAKA, BENGALURU. DATED THIS THE 5 DAY OF AUGUST, 2015 BEFORE THE HON'BLE MR. JUSTICE RAM MOHAN REDDY WRITPETITIONNO.5O11OF2015(T!IT) BBRTWEE# MR.S.JAGANATHANAGED ABOUT 59 YEARSLEGAL HEIR OF LATE A S SENGODA GOUNDER.NO.6, BRIDGE ROAD, PALLIPALAYAMHRODE-6038006.OUT OF STATE ... PETITIONER (By Sri. BALRAM R RAO, ADV.,) ANI 1.THR COMMISSIONBR OF INCOMB TAX.BANGALORE-LILINCOME TAX DBPARTMEBNTFIRST FLOOR, C R BUILDINGQUEENS ROAD, BANGALORE-S60001..BANGALORE-LILINCOME TAX DBPARTMEBNTFIRST FLOOR, C R BUILDINGQUEENS ROAD, BANGALORE-S60001.. ? THE ASSISTANT COMMISSIONER OFINCOME TAXINCOME TAX CENTRAL CIRCLE IIL INCOME TAX DEPARTMENT THIRD FLOOR, C R BUILDING QUEENS ROAD, BANGALORE-S60001.. 3.THR INCOME TAX OFFICEKRCOMPANY WARD 12(2)IV FLOORINCOME TAX DEPARTMENTNRUPATHUNGA ROADBANGALORE-56000 1. ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES296 AND 227 OF THR CONSTITUTION OF INDIA!PRAYING TO A] QUASH THE IMPUGNED RECOVERYNOTICKH DATED 25.29.9013 AND 22.12.2014 PASSEBY THE R-3 VIDB ANN-T FOR THR ASSKBSSMEBENT YB1995-96..B]RBSTRAINTH ER-3|PROCHBDINGFURTHERIN|PURSUANCE.OF|THE.IMPUGNBEDRBCOVEKRYNOTICE|DATED.95.92.9013AND.27?..12.2014 VIDE ANN-T FOR THR ASSBSSMEBNT YB1995-96. C} DIRECT THE R-1 TO GRANT THECRHRTIFICATEK IN THRMS OF SKBCTION 93 OF THR KVIVAD SAMADHAN SCHBME 1998 IN ACCEPTING THE|FORM OF DBCLARATION DATED 23.12.1998 FILED IN|TERMS.OFSECTION|QO?OFTHEKARVIVAT)SAMADHAN SCHBMB 1998 ON BBRBHALF OF THDBCBASED|ASSHKSSEEIN|THERBGULARASSHSSMBNT PROCKBBDINGS RELATING TO THEASSESSMENT YEAR 1995-96 & ETC., THISWRIT|PETITIONCOMING|ON|HORPRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE)COURT MADE THE FOLLOWING: 3 ORDER The assessee named A.S.Sengoda Gounder, sincedeceased was represented by his son the petitioner, in adeclaration dated 22.12.1988, under Section 85 of)Finance (No.2) Act, 1998 (KVSS), in Form-1A forassessment year 1995-96. The question of entitlementof the assessee to claim benefit under Kar Vivad|Samadhan Scheme, for short ‘KVS Scheme’, whenrejected by order dated 19.2.1999 of the commissionerof Income Tax, was questioned in WP.106003/1999,which petition when rejected by order dated 8.1.2004,was considered, in Writ Appeal 9960/2004, whence itwas observed thus: “The above appeal is disposed of withoutanswering the question of law by holdingthat the assessee/appellant would beentitled to claim the benefit accruing underthe KVSS only in the event of ITA1029/2006 pending before this Court isdismissed and reaches finality, in as muchas the protective assessment orders passedOT]31-3-1998anddemandraisedthereunder would get revived. In such an event the Designated Authority wouldconsider the declarations filed by theappellants under Section 88 of the FinanceAct dated 22-12-1998 Annexure ‘C’ and ‘H’respectively in accordance with law subjectTOtheaSSECSSECEsatisfyingallotherconditions under the Scheme.It is alsomade clear that, in the event the Revenuesucceeds in the appeal i.e., ITA 1029/2006,the question of considering the declarationdated 22.12.1998 as per Annexure_g&0and/H0would not arise. (emphasis supplied) 2. The miscellaneous petition to delete or modifythereference madeTOpendingappeal1.e.ITA.1029/20061ntheOrder.dated3.7.2009,1n W.A.No.996/2004,WaS rejectedbyorder.dated26.05.2011. 3. It appears ITA 1029/2006 filed by the revenuewas allowed by order dated 31.3.2010 whereunder, theorder of the tribunal was set-aside and the proceedingremitted to the assessing officer Keeping all contentionsopen over substantial question of law No.3, which readsthus:-. “Whether the Tribunal failed to recorded a/finding as to whether the conclusion drawnby the first Appellate Authority that after areturn is filed if the search is conducted the|income declared by the assessee in thereturn cannot be brought to tax under theregular assessment but should be brought totax under Chapter XIV-B block assessmentsof the Act”. 2. The miscellaneous petition to delete or modifythereference madeTOpendingappeal1.e.ITA.1029/20061ntheOrder.dated3.7.2009,1n W.A.No.996/2004,WaS rejectedbyorder.dated26.05.2011. 3. It appears ITA 1029/2006 filed by the revenuewas allowed by order dated 31.3.2010 whereunder, theorder of the tribunal was set-aside and the proceedingremitted to the assessing officer Keeping all contentionsopen over substantial question of law No.3, which readsthus:-. “Whether the Tribunal failed to recorded a/finding as to whether the conclusion drawnby the first Appellate Authority that after areturn is filed if the search is conducted the|income declared by the assessee in thereturn cannot be brought to tax under theregular assessment but should be brought totax under Chapter XIV-B block assessmentsof the Act”. Therefore it is for the Assessing officer to decidethe case afresh. 4. Petitioner filed W.P.No.381503/2013, whence, a learnedsingleJudgebyorderdated|13.8.2014recording the submission of learned counsel for revenuethat the order dated 3.7.2009, in W.A. 996/2004, wouldbe complied within eight weeks, petition was disposedof. oO. In compliance with the said order, theCommissioner of Income Tax-IIJ Bangalore, havingregard to the specific finding in W.A.No.996/2004, more appropriately, that in the event, the revenue succeeds.in ITA 1029/2006, there was no question of|considering the declaration dated 22.12.1998 of lateA.S.Sengoda Gounder, represented by the petitioner,accordingly, by order dated 29.09.2014, Annexure-V,.rejected, the claim for benefit under the ‘KVS Scheme’. 6.|The submission ot the learned counsel for!the petitioner that ITA 1029/2006 was in respect ofassessment of the return filed by 8S. Jagannathan in hisindividual capacity and not as a legal representative ofdeceased A.S. Sengoda Gounder, is noticed to berejected, since that plea ought to be advanced in WA996/2004. Moreover the very same plea whenadvanced before the Commissioner of Income Tax, thatauthority had no jurisdiction to interfere with the Orderin WA 9996/2004. TS|In the circumstances, no exception can be|taken to the finding and conclusion arrived at by theCommissioner of Income Tax in the order impugnedcalling for interference. 8. Sequentially, the reliefs to quash the recoverynotice Annexure-T for the assessment year 1995-96 as_also for a writ of prohibition to prohibit the 3["8]respondent from proceeding further in pursuance ofrecovery notice Annexure-T and a writ of mandamus tothe 1[5?]respondent to grant a certificate in terms ofsection 93 of “KVS Scheme’ by accepting the declarationdated 22.12.1998 of late A.S.Senagoda Gounder areunavailable to the petitioner. Petition rejected. la| Sd/-JUDGE|