M/S.CORTEX ENTERPRISES vs. THE INCOME TAX OFFICER

TCA.No.7 of 2021 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.1.2021 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM and THE HONOURABLE MS.JUSTICE R.N.MANJULA Tax Case Appeal No.7 of 2021 & CMP.No.192 of 2021 M/s.Cortex Enterprises, Chennai-4 ...Appellant Vs The Income Tax Officer, Non Corporate Ward 1(5), Chennai-34 ...Respondent APPEAL under Section 260A of the Income Tax Act, 1961 against the order dated 30.4.2019 passed by the Income Tax Appellate Tribunal, 'B' Bench, Chennai made in I.T.A.No.3379/Chny/2018 for the assessment year 2013-14. For Appellant: Mr.P.Prithvi Chopda For Respondent : Mr.T.Ravikumar, SSC Judgment was delivered by

T.S.SIVAGNANAM

This appeal has been filed by the assessee under Section 260A of the Income Tax Act, 1961 ('the Act' for brevity) challenging the order 1/6 https://www.mhc.tn.gov.in/judis/ TCA.No.7 of 2021 dated 30.4.2019 made in I.T.A.No.3379/Chny/2018 on the file of the Income Tax Appellate Tribunal, Chennai, 'B' Bench ('the Tribunal' for brevity) for the assessment year 2013-14. 2. The assessee has filed this appeal by raising the following substantial questions of law: “1. Whether, in the facts and circumstances of the case, the Appellate Tribunal is correct in law to uphold the disallowance under Section 40A(3) for the payment made in the course of business due to unavoidable circumstance falling under exceptional circumstance provided under Rule 6DD of the Income Tax Rules? and 2. Whether, in the facts and circumstances of the case, the Appellate Tribunal is right in not rendering any finding regarding the direct deposit of the amount in the bank account of the seller will also warrant disallowance under Section 40A(3) of the Act?” 3. We have heard Mr.P.Prithvi Chopda, learned counsel appearing for the appellant – assessee and Mr.T.Ravikumar, learned Senior Standing Counsel accepting notice for the respondent – Revenue. 4. The learned counsel for the appellant/assessee, on instructions, submitted that the appellant/assessee intends to avail the 2/6 https://www.mhc.tn.gov.in/judis/ TCA.No.7 of 2021 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 raised 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 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 3/6 https://www.mhc.tn.gov.in/judis/ TCA.No.7 of 2021 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 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 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 4/6 https://www.mhc.tn.gov.in/judis/ TCA.No.7 of 2021 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 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. 10. The tax case appeal stands disposed of with the aforementioned liberty. Consequently, the substantial questions of law raised are left open. No costs. Consequently, the connected CMP is closed. 11.1.2021 RS 5/6 https://www.mhc.tn.gov.in/judis/ TCA.No.7 of 2021 T.S.SIVAGNANAM,J AND R.N.MANJULA,J RS To 1.The Income Tax Appellate Tribunal, 'B' Bench, Chennai. 2.The Income Tax Officer, Non Corporate Ward 1(5), Chennai-34. TCA.No.7 of 2021 & CMP.No.192 of 2021 11.1.2021 6/6 https://www.mhc.tn.gov.in/judis/