SMT.K.JAYANTHI vs. INCOME TAX OFFICER

T.C.A.No.33 of 2018 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.10.2020 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM and THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN T.C.A.No.33 of 2018 Smt.K Jayanthi .. Appellant Versus Income Tax Officer, Ward I(2) Salem .. 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 'C' Bench, Chennai dated 11.07.2017 made in I.T.A.No.834/MDS/2015 relating to the Assessment Year 2004-05. For Appellant : M/s.G.Vardini Karthik For Respondent : M/s.M.Swaminathan Senior Standing counsel and M/s.V.Pushpa Junior Standing counsel 1/6 http://www.judis.nic.in T.C.A.No.33 of 2018 JUDGMENT [Order of the Court was made by

T.S.SIVAGNANAM

, J.]

This appeal has been filed by the assessee under Section 260 A of the Income Tax Act, 1961 ('the Act' for brevity), is directed against the order dated 11.07.2017 passed by the Income Tax Appellate Tribunal, Chennai, 'C' Bench ('the Tribunal' for brevity) in I.T.A.No.834/MDS/2015 for the Assessment Year 2004-05. The appeal has been filed, raising the following Substantial Question of Law for consideration: “1. Whether the Appellate Tribunal was right in law in upholding an assessment which was done in gross violation of the principles of natural justice, in as much as the books of account impounded during survey were not returned to the assessee, resulting in delay in filing the return? 2. Whether the Appellate Tribunal was right in holding the assessment done u/s 144 is valid, dehors issuance of notice u/s 143(2)? 3. Whether the Tribunal was right in confirming the enhancement of the cost of construction by the CIT(A), when the matter was at no stage referred to the Department Valuation officer u/s 55A for obtaining a valuation report?” 2/6 http://www.judis.nic.in T.C.A.No.33 of 2018 2. We have heard M/s.G.Vardini Karthik, learned counsel appearing for the appellant/assessee and Mr.M.Swaminathan, learned Senior counsel and M/s.V.Pushpa, learned Junior Standing counsel for the respondent/Revenue. 3. 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. 4. 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 3/6 http://www.judis.nic.in T.C.A.No.33 of 2018 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. 5. 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, 4/6 http://www.judis.nic.in T.C.A.No.33 of 2018 where the Act 3 of 2020 will not be applicable. 6. We are informed by the learned counsel for the appellant/assessee that the assessee has already filed the declaration under Section 4 of the Act on 10.08.2020 and the assessee is ready and willing to pay the tax since the intimation is received from the Department. 7. 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 5/6 http://www.judis.nic.in T.C.A.No.33 of 2018 T.S.SIVAGNANAM, J. AND V.BHAVANI SUBBAROYAN, J. Kak 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. 8. 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. (T.S.S.,J) (V.B.S.,J) 13.10.2020 Kak Index: Yes / No Internet: Yes / No Speaking Order/Non-Speaking Order To The Income Tax Appellate Tribunal, 'C' Bench, Chennai. T.C.A.No.33 of 2018 6/6 http://www.judis.nic.in