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TMI Blog2005 (8) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... 98, that only if an order is passed by the Settlement Commission under sub-section (4) of section 245D of the Income-tax Act, the said Kar Vivad Samadhan Scheme, 1998, will not apply – but, there is no dispute that no final order was passed by the Settlement Commission under sub-section (4) of section 245D - order passed under section 90(2) shall prevail over other orders and thereafter total immunity is granted to the assessee concerned - - - - - Dated:- 9-8-2005 - Judge(s) : DR. S. RADHAKRISHNAN., J. H. BHATIA. JUDGMENT Heard learned counsel for the petitioner and the respondents. In all the above three petitions, as the identical question of law is involved, we are disposing of all the three above petitions by this common order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Writ Petition No. 6724 of 2000, the following statement shows the income in respect of which disputed tax was settled under the Kar Vivad Samadhan Scheme: Assessment Income related Income determined Difference year to KVSS by Settlement Commission 1986-87 7,52,740 7,52,740 Nil 1987-88 8,42,774 8,42,770 4 1988-89 8,57,829 8,57,830 1 1989-90 8,39,130 8,39,130 Nil 1993-94 49,55,723 49,55,725 2 There is no dispute that in the above three petitions, the designated authority has issued the final certificate under section 90(2) read with section 91 of the Finance (No. 2) Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclarant has filed an appeal or reference or a reply to the show-cause notice against any order or notice giving rise to the tax arrear before any authority or Tribunal or court, then, notwithstanding anything contained in any other provisions of any law for the time being in force, such appeal or reference or reply shall be deemed to have been withdrawn on the day on which the order referred to in sub-section (2) is passed:" Similarly, he also brought to our notice the provisions of section 95, which deals with the issue that the Scheme shall not apply in certain cases. As far as the petitioners are concerned, section 95(i)(b) would be relevant, which reads as under: "95(i)(b) in a case where an order has been passed by the Settlement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice two judgments of the Supreme Court interpreting the scope of the said section 90 of the Kar Vivid Samadhan Scheme and the effect of an order being passed under section 90. He referred to the judgment of the Supreme Court in Smt. Sushila Rani v. CIT [2002] 253 ITR 775, wherein the Supreme Court has held as under: "An examination of the scheme of sections 89, 90 and 91 of the Kar Vivad Samadhan Scheme would reveal that every person entitled to make a declaration under the said scheme was obliged to submit the declaration on or before January 31, 1999; that a period of 60 days has been stipulated under section 90(1) for the designated authority under the scheme to determine the amount payable by the declarant and the certificate to thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into account when calculating the tax arrears. As such there is a mistake in calculation, which needs rectification'. The whole basis of the notice is only that adjustments already made had not been taken note of. If this is the basis of the issuance of the notice and not the false declaration and that information was available with the Department even at the time of the finalisation of the proceedings under section 90 of the Kar Vivad Samadhan Scheme, we fail to understand as to how the matter could be reopened at this stage. That information was already available with them and there is no false declaration in that regard. In that view of the matter, the notice issued is without jurisdiction." Similarly, the Supreme Court in another jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner to withdraw the same. Dr. Daniel, learned counsel appearing on behalf of the respondents, sought to justify the order of the Settlement Commission, contended that any order passed under section 245D by the Settlement Commission would be a bar for the assessee to proceed with the Kar Vivad Samadhan Scheme, 1998, and he strongly relied on the Bill to indicate that in the Bill, section 95(i)(b), there was no such distinction made and as such contended that the order passed by the Settlement Commission is fully justifiable and there is nothing illegal or perverse in the same. Having regard to the facts and circumstances of the case, it is explicitly clear from the provisions of section 90(2) of the Kar Vivad Samadhan Scheme, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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