The Commissioner of Income-tax, Chennai v. Bidam Kawar
[Citation -2020-LL-1105-44]

Citation 2020-LL-1105-44
Appellant Name The Commissioner of Income-tax, Chennai
Respondent Name Bidam Kawar
Relevant Act Income-tax
Date of Order 05/11/2020
Assessment Year 2010-11
Judgment View Judgment
Keyword Tags imposition of penalty • condonation of delay • designated authority • initial burden • immunity • vivad se vishwas scheme

T.C.A.No.224 of 2020 IN HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.11.2020 CORAM HONOURABLE MR.JUSTICE T.S.SIVAGNANAM and HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN T.C.A.No.224 of 2020 Commissioner of Income Tax, Chennai. .. Appellant Versus Smt Bidam Kawar .. Respondent Prayer:- Tax Case Appeal filed under Section 260-A of Income Tax Act, 1961, against order of Income Tax Appellate Tribunal, Madras 'C' SMC Bench, Chennai made in I.T.A.No.601/Chny/2019 dated 22.07.2019 relating to Assessment Year 2010-11. For Appellant : Mr.T.Ravikumar Senior Standing counsel For Respondent : Mr.P.Hari For Mr.A.E.Lakshmi Narayanan 1/8 T.C.A.No.224 of 2020 JUDGMENT [Order of Court was made by T.S.SIVAGNANAM, J.] This appeal has been filed by Revenue under Section 260 of Income Tax Act, 1961 ('the Act' for brevity), is directed against order dated 22.07.2019 passed by Income Tax Appellate Tribunal, Madras 'C' SMC Bench, Chennai ('the Tribunal' for brevity) in I.T.A.No.601/Chny/2019 for Assessment Year 2010-11. This appeal was admitted on 19.08.2020 on following Substantial Questions of Law: 1.Whether on facts and in circumstances of case, Tribunal was right in setting aside well reasoned order passed by Assessing officer for re- examination, especially when all material placed were duly examined by A.O. while passing assessment order? 2. Whether on facts and in circumstances of case, Tribunal was right in remitting issue back to file of Assessing Officer by quoting decision in case of Kanhaiyal and Sons (HUF) in ITA.No.1849/Chny/2014 Sunil Kumar Lalwani and that Aashesh Kumar Lalwani wherein onus has been shifted to Revenue with direction that Assessing Officer is to bring on record 2/8 T.C.A.No.224 of 2020 role of Assessee in promoting Company and relation of Assessee, if any with that of promoters and role of inflating of prices etc., which exercise had already been done by AO and SEBI? 3. Is not finding of Tribunal perverse especially when decision of Tribunal is contrary to time tested Principal that person, who asserts fact has to discharge initial burden cast upon him to show that said facts are true and only thereafter burden would shift to Department? 2. We have heard Mr.T.Ravikumar, learned Senior Standing counsel for appellant/Revenue and Mr.P.Hari for Mr.A.E.Lakshmi Narayanan, learned counsel for respondent/assessee. 3. It may not be necessary for this Court to decide Substantial Questions of Law framed for consideration on account of certain subsequent developments. Government of India enacted 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. Act of 3/8 T.C.A.No.224 of 2020 Parliament received assent of President on 17th March 2020 and published in Gazette of India on 17th March 2020. 4. In terms of said Act, assessee has been given option to put end to tax disputes, which may be pending at different levels either before First Appellate Authority or before Tribunal or before High Court or before Hon'ble Supreme Court of India. Under Section 2(j) disputed tax has been defined. In terms of Section 3, where declarant means person, who files declaration under Section 4 on or before last date files declaration to designated authority in accordance with provisions of Section 4 in respect of tax arrears, then, notwithstanding anything contained in Income Tax Act or any other law for time being in force, amount payable by declarant shall be determined in terms of Section 3(a-c) thereunder. 5. First Proviso to Section 3 states that in case, where Appeal or Writ Petition or Special Leave Petition is filed by Income Tax 4/8 T.C.A.No.224 of 2020 authority on any issue before Appellate Forum, amount payable shall be one-half of amount in table stipulated in Section 3 calculated on such issue, in such manner as may be prescribed. second proviso deals with cases, where matter is before Commissioner (Appeals) or before Dispute Resolution Panel. third proviso deals with cases, where issue is pending before Income Tax Appellate Tribunal. filing of declaration is as per Section 4 of Act and particulars to be furnished are also mentioned in Sub Sections of Section 4. Section 5 of Act deals with time and manner of 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 Act deals with cases, where Act 3 of 2020 will not be applicable. 6. We are informed by learned counsel for respondent/assessee that assessee has already filed declaration under Section 4 of Act on 03.11.2020. 5/8 T.C.A.No.224 of 2020 7. In light of fact that assessee has already availed benefit under Act, no useful purpose would be served in keeping this appeal pending. At same time, safeguarding interest of assessee in event order to be passed by Department under Act is not in favour of assessee. Accordingly, Tax Case Appeal stands disposed of on ground that assessee has already filed declaration and Department shall process application at earliest in accordance with said Act and communicate decision to assessee at earliest. As observed, assessee is given liberty to restore this appeal in event ultimate decision to be taken on declaration filed by assessee under Section 4 of said Act is not in favour of assessee. If such prayer is made, Registry shall entertain prayer without insisting upon any application to be filed for condonation of delay in restoration of appeal and on such request made by assessee by filing Miscellaneous Petition for Restoration, Registry shall place such petition before Division Bench for orders. 6/8 T.C.A.No.224 of 2020 8. With this observation, Tax Case Appeal stands disposed of with aforementioned liberty and Consequently, Substantial Questions of Law are left open. No costs. (T.S.S.,J) (V.B.S.,J) 05.11.2020 Kak Index: Yes / No Internet: Yes / No Speaking Order/Non-Speaking Order To Income Tax Appellate Tribunal, 'C' SMC Bench, Chennai. 7/8 T.C.A.No.224 of 2020 T.S.SIVAGNANAM, J. AND V.BHAVANI SUBBAROYAN, J. Kak T.C.A.No.224 of 2020 05.11.2020 8/8 Commissioner of Income-tax, Chennai v. Bidam Kawar
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