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TMI Blog2006 (12) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... ing as on the stipulated date where the assessee was litigating before the appropriate forum and because of pendency of such disputes tax was outstanding on that score the assessee was entitled to take benefit of the said scheme provided he applied for settlement of such disputes upon payment of tax for the disputed amount at the rate prescribed under the said Scheme of 1998. Upon such payment the Revenue authority was obliged to issue a settlement certificate upon verification of the amount and payment thereof. This was prevalent for a certain period. The scheme was challenged before the Delhi High Court by the All India Federation of Tax Practitioners on several grounds. One of the grounds was that the defaulting assessees were given benefit to settle the tax disputes whereas the assessees whose dispute was pending although there was no tax arrear, were deprived of such benefit. The Delhi High Court while deciding the issue observed that the pending dispute where the Revenue preferred appeal against the benefit so extended to the assessee those appeal could also be settled by applying the identical procedure. In the said decision in the case of All India Federation of Tax Pract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y" 1999. Accordingly, the Department issued a settlement certificate and thereafter withdrew the appeal then pending before the Tribunal. After about 8 months in October, 1999, the appellant's chartered accountant informed them that he gave erroneous legal advice as the Revenue was not entitled to calculate the tax by taking into account the entire disputed income in terms of the said circular as it was not in spirit of the Delhi High Court judgment or the said Scheme of 1998. The appellant waited for about six months thereafter and in April, 2000, filed a writ petition before this court, inter alia, challenging the said circular as well as for refund of the amount so paid in excess, according to them under the said Scheme of 1998. It was contended on behalf of the appellant before the learned single judge that the Revenue while calculating the disputed outstanding tax should have taken into account the original order passed by the Assessing Officer and not the entire amount involved in the grounds of appeal applying the said circular dated December 17, 1998. It was further contended that originally when the appellant applied for settlement of the disputes under the said Scheme o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... munication dated January 29, 1999, and paid tax without any protest under misconception such mistake or misconception could not be fatal if such calculation was ultimately found wrong or de hors the statutory provision. Mr. Khaitan further contended that there could be no estoppel against a statutory provision and a mistake so committed by the appellant could not be used against the appellant by which the Revenue was allowed to enjoy unjust gain. Mr. Khaitan, further contended that when the learned judge found that the appellant's contention had substance, His Lordship should not have denied relief only on the ground that no contemporaneous protest was made by the appellant. Mr. Khaitan drew our attention to paragraphs 16 and 23 of the writ petition wherein the appellant contended that on mistaken advice of the chartered accountant the appellant paid the tax. However, such mistake could be located only in October, 1999, that a differential treatment was meted out by the said circular to the assessees similarly circumstanced. Mr. Khaitan contended that these two paragraphs were not properly dealt with by the Revenue and in this regard paragraphs 10 and 16 of the affidavit-in-oppos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be brought within the mischief of taxable income in case the Department succeeded in their appeal. The Revenue accordingly calculated tax on the said amounts and informed the assessee accordingly. It was open for the assessee either to accept such calculation or to reject the same. The assessee duly paid the said amount without any protest as a result whereof such tax disputes stood resolved by issuance of the said certificates and withdrawal of the Departmental appeal. Hence, the learned judge was right in denying relief to the assessee as it would amount to undue hardship upon the Revenue as it would not be in a position to proceed with their appeal which stood disposed of by the order of withdrawal. Mr. Shome heavily relied on the decision in the case of Smt. Sushila Rani [2002] 253 ITR 775 (sc). Mr. Shome in support of his contention relied on a recent Supreme Court decision in the case of Jai Narain Parasrampuria (Deceased) v. Pushpa Devi Saraf reported in [2006] 133 Comp Case 794 (sc); [2006] 7 SCC 756. In reply Mr. Khaitan tried to distinguish the apex court decision in the case of Smt. Sushila Rani [2002] 253 ITR 775. According to him, in the said case the Revenue at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propounded to collect disputed tax arrears. At the same time opportunity was given to the assessees to settle a longstanding tax disputes. It was absolutely a voluntary scheme. If an assessee was of the view that he would be benefited by the said scheme by resolving the pending tax dispute once for all he was free to make a declaration under section 88. Once such declaration was made it was incumbent upon the designated authority to calculate the tax payable under the said Scheme and intimate the same to the assessee. Here the assessee got a second scope either to go ahead or to withdraw himself from such settlement. Once such payment was made as so assessed by the designated authority under section 90 the said amount could not be refunded under any circumstances under section 93. At the same time the appellate authority was also debarred from proceeding with the pending appeal. Hence, such settlement was a conclusive one and could not be reopened, in our view, under any circumstances. The exceptional circumstances so considered by the apex court in the case of Smt. Sushila Rani [2002] 253 ITR 775 was a clerical or arithmetical mistake or a false declaration which was not in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice the settlement in favour of the declarant should be deemed to be full and final in respect of other persons on whom show-cause notices had been issued. There also show-cause notices were issued to the company as well as individuals. Once it was settled at the instance of one notice the apex court held that the Department was not entitled to proceed in respect of the self-same notices. Even holding as such the apex court in the concluding portion held that even though the amount was paid under protest the assessee was not entitled to refund because of the stringent provision of section 93. Taking a sum total of the situation and on a combined reading of the apex court decision in the case of Union of India v. Onkar S. Kanwar [2002] 258 ITR 761 and Smt. Sushila Rani [2002] 253 ITR 775 (SC), we are of the view that the issue once resolved under the said Scheme of 1998 could not be reopened except under exceptional circumstances as discussed in the case of Smt. Sushila Rani [2002] 253 ITR 775 (SC). In the instant case, such exceptional circumstances were not involved. Even if we hold that the learned judge was wrong in denying the relief by holding that it was a conclusive se ..... 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