Disposed

The Pr. Commissioner of Income Tax v. Shi Mithalal Bhanmal

Madras HC5 Nov 2020TCA/343/2020

Case brief

AI extract

What is this about?

The High Court disposed of a Tax Case Appeal filed under Section 260-A of the Income Tax Act as the respondent assessee had already filed a declaration under the Direct Tax Vivad Se Vishwas Act, 2020, rendering the appeal unnecessary unless the final decision is unfavorable to the assessee.

What did the court decide?

The Tax Case Appeal is disposed of automatically; the assessee retains liberty to restore the appeal if the declaration outcome is unfavorable.

The Pr. Commissioner of Income Tax Vs Shi Mithalal… — Writ and Judicial Review | Madras HC (2020)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 05.11.2020

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CORAM

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THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM

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and

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THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

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T.C.A.No.343 of 2020

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The Principal Commissioner of Income Tax, Chennai.

..Appellant

Versus

Shi Mithalal Bhanmal

..Respondent

Prayer:- Tax Case Appeal filed under Section 260-A of the Income Tax Act, 1961, against the order of the Income Tax Appellate Tribunal, Madras 'A' Bench, Chennai made in I.T.A.No.3522/Chny/2018 dated 01.01.2020 relating to the Assessment Year 2015-16.

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against the order of the Commissioner of Income Tax (Appeals)-5 Chennai dated 28.09.2018 and made in I.T.A.No.337/CIT(A)-5/2017-2018.

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Against the order dated 22.12.2017 made in under Section 143 (3) of Income Tax Act, 1961 PAN No. AFUPJ4141G on the file of the Income Tax Officer, Non Corporate Ward 5(3) Chennai 6 for the Assessment year 2015-2016.

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For Appellant : Mr.T.Ravikumar Senior Standing counsel

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For Respondent : Mr.P.Hari

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JUDGMENT

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[Order of the Court was made by T.S.SIVAGNANAM, J.]

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This appeal has been filed by the Revenue under Section 260 A of the Income Tax Act, 1961 ('the Act' for brevity), is directed against the order dated 01.01.2020 passed by the Income Tax Appellate Tribunal, Madras 'A' Bench, Chennai ('the Tribunal' for brevity) in I.T.A.No.3522/Chny/2018 for the Assessment Year 2015-16. This appeal was admitted on 01.10.2020 on the following Substantial Questions of Law:

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https://hcservices.ecourts.gov.in/hcservices/

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“1.Whether on the facts and in the circumstances of the case, the Tribunal was right in setting aside the well reasoned order passed by the Assessing officer for re-examination, especially when the Assessing Officer had duly examined all the material placed while passing the assessment order?

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Whether on the facts and in the circumstances of the case, the Tribunal was right in remitting the issue back to the file of the Assessing Officer by quoting the decision in the case of Kanhaiyal and Sons (HUF) in ITA.No.1849/Chny/2014 Sunil Kumar Lalwani and that Aashesh Kumar Lalwani wherein the onus has been shifted to the Revenue with a direction that the Assessing Officer is to bring on record the role of the Assessee in promoting the Company and the relation of the Assessee, if any with that of the promoters and role of inflating of prices etc., which exercise had already been done by the Assessing Officer and the SEBI? And

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Is not the finding of the Tribunal perverse especially when the decision of the Tribunal is contrary to the time tested principle that the person, who asserts a fact has to discharge the initial burden cast upon him to show that the said facts are true and only thereafter the burden would shift to the Department?”

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We have heard Mr.T.Ravikumar, learned Senior Standing counsel for the appellant/Revenue and Mr.P.Hari, learned counsel for the respondent/assessee.

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It may not be necessary for this Court to decide the Substantial Questions of Law framed for consideration on account of certain subsequent developments. The Government of India enacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of 2020) to provide for resolution of disputed tax and for matters connected therewith or incidental thereto. The Act of the Parliament received the assent of the President on 17^th March 2020 and published in the Gazette of India on 17^th March 2020.

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In terms of the said Act, the assessee has been given an option to put an end to the tax disputes, which may be pending at different levels either before the First Appellate Authority or before the Tribunal or before the High Court or before the Hon'ble Supreme Court of India. Under Section 2(j) “disputed tax” has been defined. In terms of Section 3, where a declarant means a person, who files a declaration under Section 4 on or before the last date files a declaration to the designated authority in accordance with the provisions of Section 4 in

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respect of tax arrears, then, notwithstanding anything contained in the Income Tax Act or any other law for the time being in force, the amount payable by the declarant shall be determined in terms of Section 3(a-c) thereunder.

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The First Proviso to Section 3 states that in case, where an Appeal or Writ Petition or Special Leave Petition is filed by the Income Tax authority on any issue before the Appellate Forum, the amount payable shall be one-half of the amount in the table stipulated in Section 3 calculated on such issue, in such a manner as may be prescribed. The second proviso deals with the cases, where the matter is before the Commissioner (Appeals) or before the Dispute Resolution Panel. The third proviso deals with cases, where the issue is pending before the Income Tax Appellate Tribunal. The filing of the declaration is as per Section 4 of the Act and the particulars to be furnished are also mentioned in the Sub Sections of Section 4. Section 5 of the Act deals with the time and manner of the payment and Section 6 deals with Immunity from initiation of proceedings in respect of offence and imposition of penalty in certain cases. Section 9 of the Act deals with cases, where the Act 3 of 2020 will not be applicable.

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We are informed by the learned counsel for the respondent/assessee that the assessee has already filed the declaration under Section 4 of the Act on 03.11.2020.

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In the light of the fact that the assessee has already availed the benefit under the Act, no useful purpose would be served in keeping this appeal pending. At the same time, safeguarding the interest of the assessee in the event the order to be passed by the Department under the Act is not in favour of the assessee. Accordingly, the Tax Case Appeal stands disposed of on the ground that the assessee has already filed a declaration and the Department shall process the application at the earliest in accordance with the said Act and communicate the decision to the assessee at the earliest. As observed, the assessee is given liberty to restore this appeal in the event the ultimate decision to be taken on the declaration filed by the assessee under Section 4 of the said Act is not in favour of the assessee. If such a prayer is made, the Registry shall entertain the prayer without insisting upon any application to be filed for condonation of delay in restoration of the appeal and on such request made by the assessee by filing a Miscellaneous Petition for Restoration, the Registry shall place such petition before the Division Bench for orders.

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https://hcservices.ecourts.gov.in/hcservices/

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With this observation, the Tax Case Appeal stands disposed of with the aforementioned liberty and Consequently, the Substantial Questions of Law are left open. No costs.

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s/d-
Assistant Registrar
True Copy
Sub-Assistant Registrar
Kak
To
1.The Deputy/Assistant Registrar
The Income Tax Appellate Tribunal,
'A' Bench, Chennai.
2.The Commissioner of Income Tax (Appeals)-5
Chennai
3.The Income Tax Officer
Non Corporate Ward 5(3) Chennai-6.
+1 Cc to Mr.T.Ravikumar, Advocate sr 36035.
T.C.A.No.343 of 2020
GP(CO)
SP(15/12/2020)

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The Pr. Commissioner of Income Tax v. Shi Mithalal Bhanmal

Case brief

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The Pr. Commissioner of Income Tax v. Shi Mithalal Bhanmal

Case brief

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