THE PR COMMISSIONER OF INCOM vs. SHRI VINOD KUMAR KUNDANMAL

Tax Case Appeal No.412 of 2021 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.08.2021 CORAM : THE HON'BLE MR. JUSTICE T.S. SIVAGNANAM AND THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP Tax Case Appeal No.412 of 2021 The Pr. Commissioner of Income Tax, Chennai.

... Appellant Vs.

Shri Vinod Kumar Kundanmal No.44/40, Ekambareswar Agraharam Street, Sowcarpet, Chennai – 600 079. ... Respondent

Tax Case Appeal filed under Section 260A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal, Madras “A” Bench, dated 12.12.2019 passed in I.T.A.No.3526/Chny/2018. For Appellant : Mr.T.Ravi Kumar Senior Standing Counsel For Respondent : Mr.P.Hari Page 1/6 https://www.mhc.tn.gov.in/judis/ Tax Case Appeal No.412 of 2021 J U D G M E N T (Judgment was delivered by T.S. SIVAGNANAM, J.) The above appeal filed by the Department under Section 260A of the Income Tax Act, 1961 ('the Act' for brevity), is directed against the order dated 12.12.2019 passed by the Income Tax Appellate Tribunal, Madras “A” Bench, Chennai ('the Tribunal' for brevity) in I.T.A.No.3526/Chny/2018 for the Assessment Year 2015-16. The above appeal was admitted on 27.07.2021 on the following substantial questions of law : “1.Whether on the facts and 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? 2.Whether on the facts and 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 Page 2/6 https://www.mhc.tn.gov.in/judis/ Tax Case Appeal No.412 of 2021 in promoting the Company and the relation of the Assessee if any with that of the promoters and the role of inflating of prices, etc. which exercise had already been done by the AO and the SEBI? 3.Is not the finding of the Tribunal perverse especially when the decision of the Tribunal is contrary to the time tested Principal 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?” 2.We have heard Mr.T.Ravi Kumar, learned Senior Standing Counsel for the appellant/Revenue and Mr.P.Hari, learned counsel for the respondent/assessee. 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 Page 3/6 https://www.mhc.tn.gov.in/judis/ Tax Case Appeal No.412 of 2021 published in the Gazette of India on 17th March 2020. 4. We are informed by the learned counsel for the respondent/assessee that the assessee has already filed the requisite Forms 1 & 2 on 29.12.2020 under Section 4 of the Act. 5. 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, it is necessary to safeguard 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 is disposed of on the ground that the assessee has already filed the requisite Forms 1 & 2 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 Page 4/6 https://www.mhc.tn.gov.in/judis/ Tax Case Appeal No.412 of 2021 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. 6. 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.) (S.S.K., J.) 10.08.2021

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Internet : Yes

Index : Yes / No To 1.The Income Tax Appellate Tribunal, Madras “A” Bench 2.The Principal Commissioner of Income Tax, Chennai. Page 5/6 https://www.mhc.tn.gov.in/judis/ Tax Case Appeal No.412 of 2021 T.S. SIVAGNANAM, J. and SATHI KUMAR SUKUMARA KURUP, J. mkn Tax Case Appeal No.412 of 2021

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