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TMI Blog2023 (9) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same issue which the Revenue sought to invoke by issuing notice u/s 263 of the Act. - Honourable Mr. Justice Biren Vaishnav And Honourable Mr. Justice Bhargav D. Karia For the Petitioner(s) : Mr Fenil H Mehta(11663) For the Respondent(s) : Mr Karan Sanghani For Mrs Kalpana K Raval(1046) ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) 1. Heard learned advocate Mr.Fenil H. Mehta for the petitioner and learned advocate Mr.Karan Sanghani for the respondent. 2. Rule, returnable forthwith. Learned advocate Mr.Karan Sanghani waives service of notice of rule for and on behalf of the respondent. 3. With consent of the learned advocates for both the sides, this petition is taken up for final hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 5 thereof and submit that once the issue had been settled under the Scheme, it is not open for the respondent to initiate any proceedings much less the present proceedings invoking Section 263 of the Act. He would rely on the decision of the Madras High Court in the case of Gopalakrishnan Rajkumar Versus Principal Commissioner of Income Tax reported in [2022] 140 taxmann.com 394 (Madras). 7. Learned advocate Mr.Karan Sanghani appearing for the Revenue would submit that, Section 8 of the Act would indicate that in light of the declaration given by the petitioner, the issue that was under consideration under the DTVSV Scheme and the figures were not same as the one settled under the Scheme and therefore, it was open for the auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to conceding the tax position and it shall not be lawful for the income-tax authority or the declarant being a party in appeal or writ petition or special leave petition to contend that the declarant or the income-tax authority, as the case may be, has acquiesced in the decision on the disputed issue by settling the dispute. 9. In the decision of the Madras High Court in case of Gopalakrishnan (Supra) wherein also in the facts akin to the present one, the Madras High Court considered the provisions of the Scheme and interpreting Section 5 of the Act held as under : 39. The question therefore that arises for consideration is whether the impugned proceedings initiated after the petitioners opted to settle the dispute under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 144C of the Income-tax Act as on the specified date, the amount of tax payable by the appellant if the Dispute Resolution Panel was to confirm the variation proposed in the draft order; (E) in a case where Dispute Resolution Panel has issued any direction under sub-section (5) of section 144C of the Income-tax Act and the Assessing Officer has not passed the order under sub- section (13) of that section on or before the specified date, the amount of tax payable by the appellant as per the assessment order to be passed by the Assessing Officer under sub-section (13) thereof; (F) in a case where an application for revision under section 264 of the Income-tax Act is pending as on the specified date, the amount of tax payable by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 3 of the the Direct Tax Vivad Se Vishwas Act, 2020, notwithstanding anything contained in the Income Tax Act or any other law for the time inforce the amount payable by a declarant shall be as specified in the table to the said section. 42. As per Section 4(6) of the Direct Tax Vivad Se Vishwas Act, 2020, the declarations filed under Section(1) shall be presumed to have never been made if : - a) Any material particular furnished in the declaration is found to be false at any stage; b) The declarant violates any of the conditions referred to in this Act; c) The declarant acts in any manner which is not in accordance with the undertaking given by him under subsection( 5) And in such cases, all the proceedings and clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issue of Form 3, the Impugned Notice seeking to re-open the assessment under Section 263 of the Income Tax Act, 1961 could be justified. 10. In light of the facts and the decision of the Madras High Court, it was not open for the authorities to initiate proceedings under Section 263 of the Act, especially when they were clearly so barred. We are also conscious of the fact that even if the appeal memo which is placed on record is seen, the matter in issue before the CIT (Appeals) which was sought to be brought to rest by opting for the benefit of the Scheme was in context of the same issue which the Revenue sought to invoke by issuing notice under Section 263 of the Act. 11. For the aforesaid reasons, the notice dated 13th January, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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