9911796707
TMI Blog2022 (2) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... e following facts:- (a) The petitioner is a spinster. On account of certain unfavourable familial circumstances, the petitioner could not file returns for the assessment years 2011-12 to 2014-15. (b) The Parliament introduced a scheme titled "Income Declaration Scheme, 2016" ("Scheme, 2016") under Section 183 of the Act, 2016, with a view to provide opportunity to the assessees to make declarations of undisclosed income. (c) Availing the benefit of the said Scheme, 2016, the petitioner filed a declaration in the prescribed Form 1 thereunder on 30th December 2016, declaring total undisclosed income of Rs. 2,39,08,854/-, which comprised undisclosed income of Rs. 52,74,620/- for the assessment year 2011-12; Rs. 69,14,678/- for the assessment year 2012-13; Rs. 62,87,925/- for the assessment year 2013-14; and Rs. 54,31,631/- for the assessment year 2014-15. (d) In accordance with the provisions of the Act, 2016, the said undisclosed income entailed total tax, surcharge and penalty to the tune of Rs. 1,07,58,986/-. (e) It transpired that the said Form was not acted upon by the respondent No.1 as there were certain mistakes. (f) After a notice under Section 147 of the Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide their letters dated 21.01.2019 & 13.02.2019 has requested to allow credit for pre-deposited taxes i.e. Self Assessment Tax and Advance Tax. 3. As per IDS 2016 there is no provision for adjustment of any of the pre-deposited tax, such as Advance Tax and Self Assessment Tax. The relevant issue is covered by the decision passed by Hon'ble Bombay High Court in the case of Umesh D. Ganore Vs. PCIT vide order dated 08.03.2019 against Writ Petition No.14709 of 2018. 4. In view of the above facts and circumstances, your request for adjustment of Self Assessment Tax and Advance Tax into IDS 2016 is not acceptable as per Notification No.103/2019 dated 13.12.2019, you may deposit balance tax along with interest @ 1% p.m. on or before 31.01.2020 and Form No.4 will be issued immediate to making of balance tax liabilities payable by you towards IDS 2016." 7. From the aforesaid communication, it becomes evident that there is no controversy over material facts. Firstly, the petitioner had disclosed Rs. 2,39,08,850/- under the Scheme, 2016; secondly, the petitioner was required to pay a sum of Rs. 1,07,58,986/- towards the tax, surcharge and penalty; thirdly, the petitioner paid a sum of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrast, the Special Leave Petition preferred by the assessee against the decision of this Court in the case of Umesh Ganore (supra) is sub-judice before the Supreme Court as notice has been issued on 26th July 2019. 12. Per contra, Mr. Pinto, the learned counsel for the Revenue would submit that the issue sought to be raised by the petitioner is settled by the decision of this Court in the case of Umesh Ganore (supra) and, thus, the respondent No.1 was well within his rights in declining to issue the certificate in Form 4. Mr. Pinto further submitted that in the case of Umesh Ganore (supra), this Court considered the judgment of Delhi High Court in the case of Kumudam Publications Private Limited (supra) as well as the circular dated 30th June 2016 issued by the CBDT and yet disagreed with the views expressed therein for reasons which are based on the construction of the Scheme, 2016. Therefore, the petition does not deserve to be entertained. 13. In the case of Umesh Ganore (supra), a Division Bench of this Court considered the question as to whether advance tax, self-assessed tax and TDS paid by the assessee prior to filing of declaration should be adjusted towards the dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f advance tax payable. Provision for payment of advance tax is mode of quick collection of tax. Thus, section 207 defines liability to pay advance tax in respect of incomes referred to in section 208. However, advance tax paid is adjustable towards the tax due. Advance tax is collected even before the income tax becomes due and payable. By its very nature, advance tax is pre-assessment collection of taxes either by deduction of tax at source or by payment of advance tax which has to be adjusted towards income tax levied on the total income. The above two methods of realization even before any assessment is authorized by section 4(2) are incorporated in Chapter XVII which deals with "collection and recovery". In fact, section 190(1) clarifies that this method of payment of tax will not prejudice the charge of tax under section 4(1) nor will it modify the liability of the assessee to pay income tax pursuant to an assessment order. [See Modi Industries Limited v. CIT, [1995] 216 ITR 759 (SC)]. (emphasis supplied)" 16. The Supreme Court has, in terms, observed that the advance tax paid is adjustable towards the tax due. Advance tax is essentially a preassessment collection of taxes e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 199 and 219, it becomes clear that in the matter of credit, the TDS and advance tax stand on the same footing. As there is no sustainable ground to make a distinction between 'TDS' and 'Advance Tax' for the purpose of credit, we do not find any reason not to equate an advance tax with TDS for the purpose of the Scheme, 2016. If a TDS is entitled to credit, a fortiori advance tax must get the same dispensation. 22. It is true that the provisions of Chapter XVII primarily deal with regular assessment in respect of the liability to pay income tax founded in Sections 4 and 5 of the Act, 1961, which are the charging sections. It is also true that the provisions of Sections 184 and 185 of the Act, 2016 incorporating the Scheme, 2016, begin with a non obstante clause. However, the overriding effect of Sections 184 and 185 is confined to the rate at which the tax is to be imposed on the undisclosed income, surcharge to be paid thereon and the penalty. The substance of the matter, especially the fact that the advance payment made by the declarant retains the character of tax, however, cannot be lost sight of. 23. In the case at hand, it is not the case of respondent No.1 that the adva ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
