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TMI Blog2016 (10) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... arged before the filing of the declaration, then, he is entitled to avail of the Samadhan Scheme. Without considering the other contentions raised by the petitioner, we set aside the order dated 30th November, 1998 passed by the designated Authority under the Samadhan Scheme and restore the issue for fresh consideration, to include satisfaction of all other requirements. In terms of Section 90 of the Finance No.2 Act, the designated Authority is required to dispose of an application under the Samadhan Scheme within 60 days from the date of its receipt. - Decided partly in favor of assessee. - Writ Petition No. 2326 of 1999 - - - Dated:- 30-9-2016 - M. S. Sanklecha And S. C. Gupte, JJ. Mr. P.J. Pardiwala, Senior Counsel a/w Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that addition of ₹ 16.25 lakhs warranted a penalty under Section 271(1)(c) of the Act. Consequently, a penalty of ₹ 8.53 lakhs under Section 271(1)(c) of the Act was imposed. (c) Thereafter, in 1996, the petitioner made application to Commissioner of Income Tax for waiver of penalty imposed by order dated 17th December, 1990 under Section 273A(1) as well as 273A(4) of the Act. (d) The petitioner's application for waiver under Section 273A(1) of the Act was rejected by order dated 26th March, 1996. However, by order dated 11th March, 1997, the Chief Commissioner of Income Tax granted his approval to 50% waiver of penalty imposed. This was communicated to the Assessing Officer by the office of Commissioner of Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14th September, 1998, the petitioner filed a declaration under the Samadhan Scheme, seeking to settle the outstanding penalty and interest payable aggregating to ₹ 2.12 lakhs. (h) By the impugned order dated 30th November, 1998, the Designated Authority rejected the petitioner's declaration dated 14th September, 1998. This on the ground that the prosecution for concealment of income had already been instituted before the date of filing of the declaration, therefore, the benefit of the Samadhan Scheme cannot be extended in view of the clear mandate of Section 95(i)(a) of the Finance No.2 Act, 1988. Further, the reliance by the petitioner on the direction dated 7th October, 1958 issued by the Central Board of Direct Taxes in term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircular dated 7 th October, 1998 : Question No.33 :Where prosecution has been launched for any particular year but the assessee has since been discharged by the competent Court, can the declaration be made under the Scheme ? Answer : Yes. 6. Mr. Pardiwala, learned Senior Counsel appearing on behalf of the petitioner points out that the Criminal Revision Petition filed by the Income Tax Department in this Court was rejected for nonremoval of office objections as far back as on 25th November, 1998. Thus, the entire basis of the impugned order that the petitioner's application for settlement cannot be entertained notwithstanding the clarification issued under Section 96 of the Finance No.2 Act by holding that the direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the declaration, then, he is entitled to avail of the Samadhan Scheme. The Designated Authority in terms of Section 96 of the Finance (No.2) Act, 1988 is obliged to follow the Circular. In this case, the petitioner has been discharged before it filed its application of settlement. Thus, the Designated Authority was bound to accept the application made for settlement under the Samadhan Scheme. 9. In any case, it may be mentioned that basis of ignoring the discharge by the Criminal Court was because the Revenue could prefer a Criminal Revision Petition before a superior forum. This in the present facts becomes academic, for the reason that the Criminal Revision Petition filed by the Income Tax Department has been rejected for nonremo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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