MR.T.N. RAJAMOHAN vs. THE ASSISTANT COMMISSIONER O

T.C.A.No.36 of 2019 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.36 of 2019

Mr.T.N.Rajamohan .. Appellant Versus The Assistant Commissioner of Income Tax, Non Corporate Circle – 2, Chennai. .. 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, dated 20.04.2018 made in I.T.A.No.2540/Chny/2016 relating to the Assessment Year 2009-10. For Appellant : Mr.A.S.Sriram For Respondent :M/s.R.Hemalatha Senior Standing counsel

1/8 http://www.judis.nic.in T.C.A.No.36 of 2019 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), challenging the order dated 20.04.2018 passed by the Income Tax Appellate Tribunal, Chennai, 'A' Bench ('the Tribunal' for brevity) in I.T.A.No.2540/Chny/2016 for the Assessment Year 2009-10. The appeal was admitted on 11.01.2019 on the following Substantial Questions of Law: “i. Whether the appellate powers encompass the power of entertaining/adjudicating new plea despite such new plea is in deviation to the return of income filed originally before the respondent/ Assessing Officer ? ii. Whether the Appellate Tribunal is correct in rejecting the new plea for tax exemption for the surplus generated from the sale of exempted category of agricultural land despite availability of the material facts for adjudicating the said new plea/claim in the records of the Revenue ? iii. Whether the Appellate Tribunal is correct in overlooking the new claim for full tax exemption for the surplus generated from the sale of exempted category of agricultural land under Section 2(14) of the Act despite the mistake committed in the 2/8 http://www.judis.nic.in T.C.A.No.36 of 2019 return of income filed before the respondent/Assessing Officer ? And iv. Whether the Appellate Tribunal is correct in concluding on the technical issue of the non admission of the appeal by the Commissioner of Income Tax (Appeals) in view of delay in filing the appeal as academic in the light of the adjudication of the issues on merits by the CIT(A) and by them ? ” 2. We have heard Mr.A.S.Sriraman, learned counsel appearing for the appellant/assessee and M/s.R.Hemalatha, learned Senior Standing counsel for the respondent/Revenue. 3. 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. 4. It may not be necessary for this Court to decide the Substantial 3/8 http://www.judis.nic.in T.C.A.No.36 of 2019 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. 5. 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 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 4/8 http://www.judis.nic.in T.C.A.No.36 of 2019 determined in terms of Section 3(a-c) thereunder. 6. 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. 5/8 http://www.judis.nic.in T.C.A.No.36 of 2019 7. As observed, the assessee is given liberty to restore this appeal 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. 8. In the light of the above, We direct the appellant / assessee to file the Form No.I on or before 09.11.2020 and the competent authority shall process the application / declaration in accordance with the Act and pass appropriate orders as expeditiously as possible preferably within a period of six (6) weeks from the date on which the declaration is filed in the proper form. 9. With this direction, the Tax Case Appeal stands disposed of 6/8 http://www.judis.nic.in T.C.A.No.36 of 2019 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, 'A' Bench, Chennai. T.S.SIVAGNANAM, J. 7/8 http://www.judis.nic.in T.C.A.No.36 of 2019 AND V.BHAVANI SUBBAROYAN, J. Kak T.C.A.No.36 of 2019 13.10.2020 8/8 http://www.judis.nic.in