M/S. IND MARK PROPERTIES P L vs. THE ASSISTANT COMMISSIONER O

T.C.A.Nos.1010 and 1011 of 2019 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.10.2020 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM and THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN T.C.A.Nos.1010 and 1011 of 2019 M/s.Ind Mark Properties P. Ltd., No.36, Ambattur Industrial Estate, Ambattur, Chennai – 600 058. PAN: AAACI9531K .. Appellant in both appeals Versus The Assistant Commissioner of Income Tax, Central Circle-II(3), Chennai – 600 034. .. Respondent in both appeals Prayer:- Tax Case Appeals filed under Section 260-A of the Income Tax Act, 1961, against the order of the Income Tax Appellate Tribunal, Madras 'C' Bench, made in M.P.No.84/Mds/2014[I.T.A.No.583/Mds/2013/ dated 12.08.2015 and I.T.A.No.583/Mds/2013 dated 28.03.2014 relating to the Assessment Year 2001-02. 1/8 http://www.judis.nic.in T.C.A.Nos.1010 and 1011 of 2019 For Appellant in both appeals : Mr.A.S.Sriraman For Respondent in both appeals : Mr.T.R.Senthil Kumar Senior Standing counsel COMMON

JUDGMENT

[Order of the Court was made by

T.S.SIVAGNANAM

, J.]

These appeals have been filed by the assessee under Section 260 A of the Income Tax Act, 1961 ('the Act' for brevity), is directed against the order passed by the Income Tax Appellate Tribunal, Chennai, 'C' Bench ('the Tribunal' for brevity) in M.P.No.84/Mds/2014[I.T.A.No.583/Mds/2013/ dated 12.08.2015 and I.T.A.No.583/Mds/2013 dated 28.03.2014 relating to the Assessment Year 2001-02. 2.The following Substantial Questions of Law have been raised for consideration. “1.Whether the Appellate Tribunal is correct in law in sustaining the disallowance of expenses for earning the contract income even after the acceptance of the charge of income by the recipient in the re- assessment passed in their hands which divergent stand 2/8 http://www.judis.nic.in T.C.A.Nos.1010 and 1011 of 2019 would negate the rule of consistency as well as the Doctrine of 'Fair Procedure'? 2.Whether the Appellate Tribunal is correct in law in overlooking the reassessment framed in the hands of the recipient in booking the income earned from the Appellant for assisting them in the execution of the contract work which amounts were claimed as expenses even though under wrong nomenclature while recording perverse findings of fact on the presumed change in stand by the Appellant in splitting up the payments made to the other entity? 3.Whether the Appellate Tribunal is correct in law in not interfering with their order passed originally u/s.254(2) of the Act especially the mistake of fact pointed out by the Appellant would fall within the ambit of the said provisions governing the rectification of the order?” 3.We have heard Mr.A.S.Sriraman, learned counsel appearing for the appellant and Mr.T.R.Senthil Kumar, learned Senior Standing counsel for the respondent. 3/8 http://www.judis.nic.in T.C.A.Nos.1010 and 1011 of 2019 4.The learned counsel for the appellant / assessee, on instructions, submitted that the appellant / assessee intends to avail the benefit of Vivad Se Vishwas Scheme ('VVS Scheme' for brevity) and in this regard, the assessee is taking steps to file the application / declaration in Form No.I. 5.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 17th March 2020 and published in the Gazette of India on 17th March 2020. 6.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 4/8 http://www.judis.nic.in T.C.A.Nos.1010 and 1011 of 2019 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 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. 7.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 5/8 http://www.judis.nic.in T.C.A.Nos.1010 and 1011 of 2019 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. 8.As observed, the assessee is given liberty to restore these appeals in the event the ultimate decision to be taken on the declaration to be 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. 9.In the light of the above, We direct the appellant / assessee to file the Form No.I on or before 11.11.2020. Upon the declaration being filed in full form, the competent authority shall process the application / declaration in accordance with the Act and pass appropriate orders as expeditiously as 6/8 http://www.judis.nic.in T.C.A.Nos.1010 and 1011 of 2019 possible preferably within a period of eight (8) weeks from the date on which the declaration is filed in the proper form. 10.With this direction, the Tax Case Appeals stand disposed of with the aforementioned liberty and Consequently, the Substantial Questions of Law are left open. No costs. (T.S.S.,J) (V.B.S.,J) 14.10.2020 cse Index: Yes / No Internet: Yes / No Speaking Order/Non-Speaking Order To The Income Tax Appellate Tribunal, 'C' Bench, Chennai. 7/8 http://www.judis.nic.in T.C.A.Nos.1010 and 1011 of 2019 T.S.SIVAGNANAM, J. AND V.BHAVANI SUBBAROYAN, J. cse T.C.A.Nos.1010 and 1011 of 2019 14.10.2020 8/8 http://www.judis.nic.in