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TMI Blog2024 (12) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate writ directing the Respondent to issue Form 5 to the Respondent in accordance with Rule 7 of the Direct Tax Vivad se Vishwas Rules, 2020; C. YOUR LORDSHIPS may be pleased to issue directions upon the Respondent to refund the amount of INR 2,00,634/- (INR Two Lakh Six Hundred Thirty Four Only) as the Petitioner had met with the major payment requirements prior to 30/09/2021; D. YOUR LORDSHIPS may be pleased to pass any further or other orders as the Hon'ble Court may deem proper in the interest of justice and in the circumstances of the case." 4. At the outset, learned advocate Mr. Dhinal Shah, under instructions, does not pray for prayer (C) in view of Section 7 of the Direct Tax Vivad se Vishvash Act, 2020. 5. Having regard to the controversy in narrow compass, with the consent of the learned advocates for the respective parties, the matter is taken up for final hearing. 6. Rule, returnable forthwith. Learned Senior Standing Counsel Mr. Karan Sanghani waives service of notice of rule for and on behalf of the respondent. 7. Brief facts giving rise to this petition can be summarised as under : 7.1. The petitioner is a Private Limited Company and filed its r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner to pay Rs. 12,28,500 on or before 30th September, 2021 and Rs. 14,29,350/- after the said date. 7.10. However, the petitioner paid the difference of Rs. 1,533/-(Rs. 12,28,500/- Rs. 12,27,183/-) on 12th October, 2021 instead of 30th September, 2021 as per the Form 3 dated 16th September, 2021. 7.11. The petitioner thereafter by letter dated 21st July, 2022 requested the respondent to issue Form No. 5 by considering the late payment of short amount of Rs. 1,533/- on 12.10.2021 within the prescribed period for payment that is up to 30th September, 2021. 7.12. The respondent by letter dated 16.08.2022 directed the petitioner to pay the entire amount of Rs. 14,29,350/- as per Form 3 on the ground that the petitioner did not deposit an amount of Rs. 12,28,500/- on or before 30th September, 2021 as only amount of Rs. 12,27,183/- was deposited on or before 30th September, 2021. 7.13. The petitioner by letter dated 25th August, 2022 again requested to consider the late payment of Rs. 1,533/- as part of the total payment as required under Form 3 contending that there was no intention for making late payment or short payment of any tax amount as out of the difference of amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or intentional when the Principal Commissioner was directed to accept the balance payment of Rs. 300/- with interest and issue Form No. 5 in terms of the Scheme; (ii) In case of I A Housing Solution Private Limited versus Principal Commissioner of Income Tax reported in [2023] 147 taxmann.com 198 (Delhi), the Hon'ble Delhi High Court held that the delay in payment of tax dues was attributable to an unforeseen and extraneous circumstances that were beyond the control of the assessee in the facts of the said case and such delay was unintentional and supported by justifiable reason and therefore the same was condoned. (iii) Sky Industries Limited versus State of Gujarat in Special Civil Application No. 246 of 2023 dated 07.06.2023 wherein, this Court considering the facts of the case before it held that merely because the petitioner inadvertently paid Rs. 2,000/- less towards the principal outstanding amount of tax, it cannot be denied the benefit of the Amnesty Scheme. (iv) Neelam Ajit Phatarperkar versus Assistant Commissioner of Income Tax, Circle -1(1) and Others of the Bombay High Court reported in (2024) 366 CTR (Bombay) 749 wherein, the Hon'ble Bombay High Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are beneficial provisions so as to reduce the litigation and the petitioner therefore cannot be subjected to the harsh approach of denying the benefit of waiver of interest and penalty under the Scheme by considering the short payment of Rs. 1,533/- by delay of twelve days as fatal to consider the entire payment made by the petitioner of Rs. 12,27,183/- as null and void under the Scheme. The object of the Scheme is to bring about expeditious and effective resolution of pending tax litigation and recovery of the outstanding dues of the Government resulting into reduction of administrative cost. The Hon'ble Bombay High Court in case of Kartik Pravinchandra Mehta (Supra) in similar facts has held as under : "6. The Direct Tax, Vivad Se Vishwas Act, 2020 was enacted by the Parliament with a view to provide for resolution of disputed tax and for matters connected therewith or incidental thereto as is clear from the preamble of the said Act. The purpose and spirit of such an enactment can be noticed from the Bill that was introduced in the parliament, the statements and objects and reasons whereof read as under: 24. Let us now read the statement of objects and reasons of the Vivad s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be increased by 10 per cent of disputed tax; (d) in appeals related to disputed penalty, disputed interest or disputed fee, the amount payable by the declarant shall be 25 per cent of the disputed penalty, disputed interest or disputed fee, as the case may be, if the payment is made on or before the 31st day of March, 2020. If payment is made after the 31st day of March, 2020 but on or before the date notified by Central Government, the amount payable shall be increased to 30 per cent of the disputed penalty, disputed interest or disputed fee, as the case may be. 4. The proposed Bill shall come into force on the date it receives the assent of the President and declaration may be made thereafter up to the date to be notified by the Government." It is thus clear that the spirit of the enactment was to unlock the amounts held up in disputes on account of pendency of various appeals filed by not only the tax payers but also the Government. The amount of disputed tax arrears as reflected in the Bill was an enormous amount of Rs. 9.32 lakh crores, which reflected approximately one year's direct tax collection. 7. In the present case it can be seen that the Petitioner b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne-time opportunity to the assessees to declare the undisclosed income which was concealed by the assessees and at the same time, provided them with immunity from penalty and prosecution under the provisions of the Act for not voluntarily disclosing the income chargeable to tax. Hence, the VDI Scheme was in the nature of an amnesty scheme which provided a window to the assessees to come clean without any adverse consequences under the provisions of the Act. It was in this context that the Apex Court observed that "....Where the assessees seek to claim the benefit under the statutory scheme they are bound to comply with the conditions under which the benefit is granted there is no application of any equitable consideration when the provisions of scheme are stated in such plain language". 15. In fact, while interpreting a similar scheme "Kar Vivad Samadhan Scheme", the Supreme Court in Commissioner of Income Tax, Rajkot Versus Shatrusailya Digvijaysingh Jadeja, 2005 (9) TMI 362 SC held that the object of the said Scheme was to settle tax arrears locked in litigation at a substantial discount and it provided that any tax arrears could be settled by paying the prescribed amount of ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 142 relating to the High Courts, can be no ground to think that they have not to do complete justice". 19. One of us (Manmohan, J) in Siddharth International Public School v. Motor Accident Claim Tribunal, (2016) SCC OnLine Del 4797, para 41 has held, "it is settled law that this Court has extremely broad jurisdiction under Article 226 of the Constitution and under the said Article it can pass whatever orders are necessary for doing equity and justice. The Supreme Court in N.S. Mirajkar v. State of Maharashtra, 1966 3 SCR 744 has held that "unlike a inferior court, in respect of a High Court, which is also a Court of Record, it is assumed that every action is within its jurisdiction, unless expressly shown otherwise". 20. Consequently, the power of the High Court under Article 226 of the Constitution of India to grant relief in extraordinary and exceptional circumstances cannot be taken away or curtailed by any legislation. 21. In fact, the Supreme Court in Dal Chandra Rastogi v. CBDT (2019) 104 taxmann.com 341 (SC) wherein the assessee had filed a declaration of undisclosed income under the Income Declaration Scheme, 2016 and had failed to pay the third installment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under : "2. In that view of the matter, the High Court has rightly refused to grant relief to the petitioner for extension of the period to make the deposit under the Scheme. It is a settled proposition of law that a person, who wants to avail the benefit of a particular Scheme has to abide by the terms and conditions of the Scheme scrupulously. If the time is extended not provided under the Scheme, it will tantamount to modifying the Scheme which is the the prerogative of the Government." 16. In the facts of the said case, the petitioner did not deposit the amount under the Scheme within the time limit provided under the Scheme i.e. during thirty days whereas, in the facts of the case, the petitioner has paid the almost entire amount except Rs. 1,533/- within the specified time period on or before 30th September, 2021 and therefore, it cannot be said that permitting the petitioner to the benefit of the Scheme would amount to extending the Scheme or modifying the Scheme which is the prerogative of the Government. 17. In the facts of the case, the petitioner is not permitted to pay the entire amount as per Form 3 beyound the specified date but only amount of Rs. 1,533/- which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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