Commissioner Of Income Tax v. Shri Ganpathraj And Sons

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 05.11.2020

CORAM

THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM and THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN T.C.A.No.253 of 2020 The Commissioner of Income Tax, Non Corporate Circle 10(2) Chennai.

..Appellant

Versus

Shri Ganpathraj & Sons No.30, Market Street, Perambur, Chennai 600 029.

PAN AAAHJ2810N ..Respondent Prayer:- This 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 29.11.2019 passed in I.T.A.No.2520/Chny/2019 relating to the Assessment Year 2015-16 and against the order dated 19/07/2019 made in ITA.No.106/CIT(A)-12/2017-18 on the file of the Commissioner of Income Tax (Appeals)-12, Chennai and against the order dated 21/12/2017 passed by the Income Tax Officer, Non Corporate Ward 10(2), Chennai 34 for the assessment year 2015-16. For Appellant : Mr.M.Swaminathan Senior Standing counsel assisted by Ms.V.Pushpa Junior Standing counsel For Respondent : Mr.Ashokapathi For M/s.Pass Associates

JUDGMENT

[Order of the Court was made by T.S.SIVAGNANAM, J.] This appeal has been filed by the Revenue under Section 260 A of the Income Tax Act, 1961 ('the Act' for brevity), is directed against the order dated 29.11.2019 passed by the Income Tax Appellate Tribunal 'A' Bench, Chennai ('the Tribunal' for brevity) in I.T.A.No.2520/Chny/2019 for the Assessment Year 2015-16. This appeal was admitted on 01.09.2020 on the following Substantial Questions of Law:

"1. Whether the Income Tax Appellate Tribunal was right and justified in setting aside the order passed by the assessing officer to re-examine the matter when the assessing officer has already duly examined the matter before passing the assessment order?

2. Whether the Income Tax Appellate Tribunal was right in justified in remitting the issue back to the file of the assessing officer and shifting the onus to the Revenue with a direction that the assessing officer shall bring on record the role of the assessee in promoting the company and the relationship of the assessee, if any with the promotors, role of the assessee in inflating the price of shares etc.,"

2. We have heard Mr.M.Swaminathan, learned Senior Standing counsel assisted by Ms.V.Pushpa, learned Junior Standing counsel for the appellant/Revenue and Mr.Ashok Pathi for M/s.Pass Associates, 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 published in the Gazette of India on 17th March 2020.

4. 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 determined in terms of Section 3(a-c) thereunder.

5. 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.

6. We are informed by the learned counsel for the respondent/assessee that the assessee has already filed the declaration under Section 4 of the Act on 03.10.2020.

7. 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, safeguarding 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 stands disposed of on the ground that the assessee has already filed a declaration 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 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. 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. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar Kak

To 1.The Deputy/Registrar, The Income Tax Appellate Tribunal, 'A' Bench, Chennai.

2.The Commissioner of Income Tax Appeals-12, Chennai.

3.The Income Tax Officer, Non Corporate Circle No.1, Chennai.

4.The Commissioner of Income Tax, Non Corporate Circle No.1, Chennai.

+1cc to Mr.M.Swaminathan, Advocate, SR.NO.36027 T.C.A.No.253 of 2020 SAI(CO) KKV/16/12/2020