The Commissioner Of Income Tax v. Shri Kailash Sowalchand Jain

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 01.4.2021

CORAM

THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM and THE HONOURABLE MS.JUSTICE R.N.MANJULA Tax Case Appeal No.185 of 2020 The Commissioner of Income Tax, Chennai.

...Appellant Vs Shri Kailash Sowalchand Jain

...Respondent

APPEAL under Section 260A of the Income Tax Act, 1961 against the order dated 20.11.2019 passed by the Income Tax Appellate Tribunal, 'A'

Bench, Chennai made in I.T.A.No.351/Chny/2019 for the assessment year 2013-14, preferred against the orer of the Commissioner of Income Tax (Appeals)-5, Nungambakkam, Chennai-34 dated 30/11/2018 made in ITA No.317/CIT(A)-5/2017-18 preferred against the order of the Assistant Commissioner of Income Tax, Non-Corporate Circle-5, Chennai-6, dated 26/12/2017 made in PAN.No:AAHPK8252D For Appellant:

Mrs.R.Hemalatha, SSC For Respondent : Mr.A.S.Sriraman Judgment was delivered by T.S.SIVAGNANAM,J This appeal has been filed by the Revenue under Section 260A of the Income Tax Act, 1961 ('the Act' for brevity) challenging the order dated 20.11.2019 made in I.T.A.No.351/Chny/2019 on the file of the Income Tax Appellate Tribunal, Chennai 'A' Bench ('the Tribunal' for brevity) for the assessment year 2013-14.

2. The appeal was admitted on 23.7.2020 on the following substantial questions of law :

""i. Whether, on the facts and in the circumstances of the case, the Tribunal was right in setting aside the order passed by the Assessing Officer for re-examination, especially when the Assessing Officer had duly examined the matter in extenso while

passing the assessment order ?

ii. Whether on the facts and in the 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 Kanhaiyalal and Sons (HUF) in ITA No.1849/Chny/2014 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 in promoting the company and the relation of the assessee if any with that of the promoters and role of inflating of prices etc which exercise had already been done by the AO elaborately while framing the assessment ? And iii. Is not the finding of the Tribunal perverse especially when the decision of the Tribunal is contrary to the time tested principle 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?"

3. We have heard Mrs.R.Hemalatha, learned Senior Standing Counsel appearing for the appellant/Revenue and Mr.A.S.Sriraman, learned counsel appearing for the respondent/assessee.

4. The learned counsel for the assessee submits that the assessee already filed the declaration/undertaking under the Vivad Se Vishwas Scheme and orders were passed on 21.1.2021 in Form No.3.

5. It is not out of place to make a mention that an identical issue has been considered by a Division Bench of this Court, to which, one of us (TSSJ) was a party, in the decision in the case of CIT Vs. Manish D.Jain [HUF] [reported in (2020) 122 Taxmann.com 180] and the issue has been answered in favour of the Revenue.

6. However, in the light of the subsequent development that the respondent/assessee opted to avail the benefit of the said scheme, the assessee is given liberty to restore this appeal in the event the ultimate decision 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 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 appropriate Division Bench for orders.

7. The tax case appeal stands disposed of with the aforementioned liberty. No costs.

Sd/- Assistant Registrar(CS-III) //True Copy// Sub Assistant Registrar RS To 1.The Income Tax Appellate Tribunal, 'A' Bench, Chennai.

2.The Commissioner of Income Tax(Appeals)-5, Nungambakkam, Chennai-34.

3.The Assistant Commissioner of Income Tax, Non-Corporate Circle-5, Chennai-6.

4.The Sub Assistant Registrar, AE Section, High Court, Madras.

5.The Section Officer , Judicial Section, High Court, Madras-104.

+1cc to Mr.T.Ravi Kumar, Advocate, S.R.No.21749 +1cc to Mr.S.Sridhar, Advocate, S.R.No.21813 TCA.No.185 of 2020 GSM(CO) CB(01/07/2021)