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TMI Blog2008 (10) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... f the late M. S. Viswambharan. During his life time, Viswambharan had called in question the exhibit P5 order passed by the designated authority under a scheme, known as "the Kar Vivad Samadhan Scheme, 1998". The other relief that was sought in the writ petition was to quash the exhibit P3 order passed by the assessing authority for the assessment year 1984-85 in exercise of his powers under section 155 of the Income-tax Act, 1961 ("I. T. Act" for short). The last relief that was sought was to direct the first respondent, viz., the designated authority, to pass fresh orders on the exhibit P4 declaration in accordance with the provisions of the Kar Vivad Samadhan Scheme, 1998, treating the petitioner as an assessee in default of payment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court, his son has come on record to prosecute the original petition filed by his father. 6. The learned single judge, by his order dated 14.3.2008, has rejected the writ petition. That is how the assessee is before us in this appeal. 7. Sri K. M. V. Pandalai, learned counsel appearing for the appellant/assessee, would contend, firstly, that, the orders passed by the designated authority is contrary to the provisions of the Kar Vivad Samadhan Scheme and, secondly, it is contended that the assessing authority was not justified in adjusting the refunds due to the appellant for the assessment year 1984-85 towards the tax arrears for the assessment year 1982-83. 8. In order to resolve the controversy that is canvassed by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he declaration under section 88 of the Finance Act. The expression "tax arrear", for the purpose of direct tax, means, the amount of tax, penalty or interest determined on or before 31 st March, 1998, under the direct tax enactments in respect of the assessment year as modified consequent to an order passed by an appellate authority, but remaining unpaid by the assessee on the date of declaration. 11. Section 88 of the Finance Act provides for settlement of tax payable. Omitting what is not necessary for the case, we would only refer to sub-clauses (ii), (iii) and (iv) of section 88(a) of the Finance Act. The said sub-clauses read as under [1998] 232 ITR (St.) 31, 82: "(ii) in the case of a declarant, being a person other than a comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 14. The assessments in the assessee's case has been completed by the assessing authority for the assessment year 1982-83. 15. The assessing authority, thereafter, has invoked his powers under section 155 of the Income-tax Act to modify the orders of assessment for the assessment year 1982-83 and after such modification, has quantified the tax payable by the assessee. 16. Subsequently, the assessing authority has also passed an order, in exercise of his powers under section 155 of the Income- tax Act, dated 24.11.1995. In the said order, the assessing authority has arrived at a conclusion that the assessee is entitled for refund of a sum of Rs.87,232 for the assessment year 1984-85. The assessing authority, after such quantifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority while passing orders under section 155 of the Income-tax Act dated 24.11.1995, for the assessment year 1984-85 is contrary to the statutory provisions, in particular, section 245 of the Income-tax Act. If that is so, the assessee ought to have questioned the said order before the appropriate forum. Though a copy of the application dated 8.3.1999, challenging the correctness or otherwise of the order making adjustment by the assessing authority was produced in the writ petition as exhibit P7 along with an affidavit dated 6.3.2008, it would appear that the appellant has not taken any steps to get that application disposed of by the concerned authority till this date. That only means, the order passed by the assessing authority has beco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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