9911796707
TMI Blog2002 (11) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary to decide this appeal are as under: On February 26, 1993, the appellant filed its return for the assessment year 1992-93 and followed it up with a revised return. The Assessing Officer made an order dated March 27, 1995, under section 143(3) of the Act disallowing certain claims and rejecting the contentions of the assessee. The appellant filed an appeal before the Commissioner of Income-tax (Appeals). The appellate authority by its order dated September 25, 1998, confirmed the order of the Assessing Officer in respect of the following items: (a) Premium amount of Rs. 3,57,153; (b) Depreciation to the extent of Rs. 2,13,000 (c) Interest of Rs. 27,14,000 (Totalling Rs. 32,84,153). With regard to four items/heads the appellate authority set aside the order of the assessment and remitted the matter back to the assessing authority with the direction to recompute/reassess after giving an opportunity of hearing to the assessee. The four items/heads remitted to the Assessing Officer were: "(a) Whether receipt of Rs. 27,93,977 represented income from house property or whether it represented business income? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count. The appellant protested by its letter dated January 21, 2000, and pointed out that the assessment for the assessment year 1992-93 had obtained finality in view of the declaration under the Kar Vivad Samadhan Scheme, the determination of the tax under the scheme and the final certificate issued by the designated authority. The Assessing Officer refused to accept it as final closure of the proceedings pertaining to the assessment year 1992-93. Hence, the appellant moved the High Court under article 226 to quash the impugned notice and further proceedings consequent thereto. The High Court by its judgment dated December 4, 2000, dismissed the writ petition. Hence this appeal. A look at the material provisions of the Kar Vivad Samadhan Scheme is necessary to appreciate the contentions urged. "87. In this Scheme, unless the context otherwise requires, (e) 'disputed income', in relation to an assessment year, means the whole or so much of the total income as is relatable to the disputed tax (f) 'disputed tax' means the total tax determined and payable, in respect of an assessment year under any direct tax enactment but which remains unpaid as on the date of making the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the scheme and the designated authority after application of mind had made an order under section 90, which was complied with by making payment of the tax computed under the scheme, there was no question of reopening any issue which were subject matters of the order of the designated authority. He urged that the order of the designated authority is not mechanically passed, but upon careful scrutiny of all the facts and circumstances pertaining to the declarant assessee and intended to bring about certain legal consequences under the Kar Vivad Samadhan Scheme. It was not open to the income-tax authorities to put back the clock by going back thereupon. The order of the designated authority is conclusive on all items/heads, which go into the computation of the total income of the assessee and not confined only to the heads of income in respect of which an appeal or reference may be pending. Counsel for the Revenue, however, emphasised that the expression "determined and payable" used in section 87 gives a clue to understanding the section. He contended that, in the case of the present appellant, the giving effect order made by the Commissioner of Income-tax (Appeals) had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... figure of loss arrived at by his order dated March 27, 1995, at Rs. 54,28,077 and adds thereto to the following items: Rs. 1. Receipts of compensation treated as bad debts as against income from other sources in the original order 54,28,077 2. Rent and licence fees treated as business income as against income from house property in the original order 27,93,977 3. Interest income treated as business income against income from other sources in the original order 15,49,724 Totalling 2,00,81,732 He again deducts therefrom the reliefs which had been allowed by the Commissioner of Income-tax (Appeals) on account of following: Rs. 1. Interest disallowance (page 14) (70,50,000 - 27,14,756) 43,35,244 2. Disallowance under rule 6B 1,25,279 3. Foreign travel expenses 53,740 4. Depreciation allowed on motor car, fan and furniture 67,746 Totalling 45,82,009 Finally, he further deducts the relief allowed on account of set aside issues: Rs. Bad debt (page 10) 68,02,046 Income from prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieved. It is also pointed out that the revised assessment order giving effect to the appellate order has not taken into account the heads of "Capital gains" and the rule 6D disallowance totalling Rs. 4,31,963. The grievance, if any, on this count can only be made by the assessee and not the Revenue. As far as the provisions of the Kar Vivad Samadhan Scheme are concerned, we agree with the contention of the learned senior counsel for the assessee that the order to be made by the designated authority under section 90 is a considered order which is intended to be conducive in respect of tax arrears and sums payable after such determination towards full and final settlement of tax arrears. Once the declarant makes payment of the amount so determined under section 90, the immunity under section 91 springs into effect. We are also of the view that upon such declaration being made, tax arrears being determined, paid and certificate issued under the Kar Vivad Samadhan Scheme, there is no jurisdiction for the Assessing Officer to reopen the assessment by a notice under section 143 of the Act except where the case falls under the proviso (2) of sub-section (1) of section 90 as it is found ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
