9911796707
TMI Blog2025 (4) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... 20.10.2021 to revise Form-3 dated 20.04.2021 issued by the respondent as the Designated Authority under the provisions of the Direct Tax Vivad Se Vishwas Act, 2020. 3. The case of the petitioner is that 60% of the amount of Rs. 74,92,270/- determined and payable in Form-3 dated 20.04.2021 issued by the respondent represents the interest under Section 234A, Section 234B and Section 234C of the Income Tax Act, 1961. 4. The petitioner opted to settle the dispute under the provisions of the aforesaid Act and the Rules made thereunder after an order under Section 159 of the Income Tax Act, 1961 came to be passed on 05.02.2015 declaring the petitioner as the legal representative of his deceased mother late Mrs.Pushparani. 5. Pursuant to the aforesaid order, an Assessment Order also came to be passed on 26.03.2015 against the estate of his deceased mother late Mrs.Pushparani. In the aforesaid Assessment Order dated 26.03.2015, interest was also levied under Section 234A, Section 234B and Section 234C of the Income Tax Act, 1961. 6. Operative portion of the aforesaid Assessment Order dated 26.03.2015 reads as under:- "8. The L.R filed the Computation Statement and a Return of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 Capital Gain Income 1,13,43,518 3 Tax due on the aforesaid Total Taxable Income 28,47,653 28,47,653 4 Interest under Section 234A of the Income Tax Act, 1961 3,13,247 5 Interest under Section 234B of the Income Tax Act, 1961 27,33,792 6 Interest under Section 234C of the Income Tax Act, 1961 91,118 7 Total Interest under Section 234A, Section 234B and Section 234C of the Income Tax Act, 1961 31,38,157 31,38,157 59,85,810 8. As against the aforesaid Assessment Order dated 26.03.2015, the petitioner referred a revision application under Section 264 of the Income Tax Act, 1961 before the respondent. The respondent dismissed the application vide Order dated 14.01.2016. This led to further steps against the petitioner to recover amounts determined in the Assessment Order dated 26.03.2015. 9. Under these circumstances, the petitioner requested for waiver of interest levied under the aforesaid provisions of the Income Tax Act, 1961 by filing application dated 09.01.2017. The aforesaid application was also rejected by the Chief Commissioner of Income Tax vide Order dated 06.03.2017 exercising the power und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pportunity of personal bearing to the petitioner herein and shall pass appropriate orders in accordance with law, as expeditiously as possible, in any event, within a period of six weeks from the date of receipt of copy of this order. 4. Accordingly, the writ petitions stand disposed of. No costs. Consequently, connected miscellaneous petitions are closed. W.P.No.9148 of 2017 For issuance of Writ of Certiorarified Mandamus, to call for the records of the impugned order in C.No.217/11/PCIT- 1/2015-16 # dated 14.01.2016 passed by the first respondent and quash the same and direct the first respondent respondent to consider the plea of the petitioner for the proper computation of capital gains tax in the facts and circumstances of the case. * Order treating the petitioner as the Legal Heirs of his deceased Mother. # Order revision application filed under Section 264 of the Income Tax Act, 1961. 12. Aggrieved by the Orders passed by the Writ Court in the above mentioned Writ Petitions, the Income Tax Department filed W.A.Nos.4223 to 4225 of 2019. It is, at this juncture, the Parliament enacted the Direct Tax Vivad Se Vishwas Act, 2020 and thus the petitioner opted to file a dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 10.11.2020 with the following observations:- Table-4 W.A.No.4223 of 2019 W.A.No.4224 of 2019 W.A.No.4225 of 2019 7. In the light of the fact that the respondent/assessee has already availed the benefit under the Act, no useful purpose would be served in keeping this appeal pending. At the same time, safeguarding the interest of the respondent in the event the order to be passed by the Department under the Income Tax Act is not in favour of the respondent. Accordingly, the Writ Appeal stands disposed of on the ground that the respondent has already filed a declaration and the Department shall process the application at the earliest in accordance with the said Act and communicate the decision to the respondent at the earliest. As observed, the respondent/assessee is given liberty to restore this appeal in the event the ultimate decision to be taken on the declaration filed by the respondent under Section 4 of the Income Tax Act is not in favour of the respondent. If such a prayer is made, the Registry shall entertain the prayer without insisting upon any application to be filed for condonation of delay in restoration of the appeal and on such request made by the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 4 of the Income Tax Act is not in favour of the respondent. If such a prayer is made, the Registry shall entertain the prayer without insisting upon any application to be filed for condonation of delay in restoration of the appeal and on such request made by the respondent by filing a Miscellaneous Petition for Restoration, the Registry shall place such petition before the Division Bench for orders. 8. With this observation, the Writ Appeal stands disposed of with the aforementioned liberty. No costs. 18. Under these circumstances, Form-3 was issued to the petitioner on 20.04.2021. A sum of Rs. 74,92,270/- was determined to be paid by the petitioner on or before 30.04.2021 and Rs. 82,41,497/- after 30.04.2021. 19. In this background, the petitioner filed a petition for rectification of the aforesaid order in Form-3 on 04.08.2021, which has culminated in the Impugned Order 27.10.2021 of the respondent. The learned Senior Counsel for the petitioner has relied on the decision of the Hon'ble Supreme Court and that of this Court in the following cases:- i. Dwarka Prasad Agarwal (D) by Lrs and another Vs. B.D.Agarwal and others, (2003) 6 SCC 230. ii. Union of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the preliminary conditions laid down under the statute, which are necessary to the exercise of its jurisdiction. There cannot be any waiver of a statutory requirement or provision that goes to the root of the jurisdiction of assessment. An order passed without jurisdiction is a nullity. Any consequential order passed or action taken will also be invalid and without jurisdiction. Thus, the power of assessing officers to reassess is limited and based on the fulfilment of certain preconditions." 26. This Court in "Commissioner of Income Tax Vs. M.Hemanathan, (2016) 384 ITR 177 (Mad.)", in Paragraph Nos.18 and 19, held as under:- "18. Sub-section (1) of section 159 would apply to a case where a liability has already crystallised. The death of an assessee would not absolve the legal heirs of the assessee of any liability that the assessee had incurred during his life time. In the case on hand, the liability, if any, would have arisen only after an order is passed under section 263. Therefore, sub-section (1) of section 159 will not apply to the case on hand. Sub-section(2) of section 159 deals primarily with two contingencies. The first is dealt with in clause (a) of sub-section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1st day of January, 2021 or such later as may be notified] but on or before the last date (a) Where the tax arrear is the aggregate amount of disputed tax, interest chargeable or charged on such disputed tax and penalty leviable or levied on such disputed tax. Amount of the disputed tax. The aggregate of the amount of disputed tax and ten percent of disputed tax. Provided that where the ten percent of disputed tax exceeds the aggregate amount of interest chargeable or charged on such disputed tax and penalty leviable or levied on such disputed tax, the excess shall be ignored for the purpose of computation of amount payable under this Act. (b) where the tax arrear includes the tax, interest or penalty determined in any assessment on the basis of search under section 132 or section 132A of the Income-tax Act. The aggregate of the amount of disputed tax and twenty-five percent of the disputed tax. Provided that where the twenty-five percent of disputed tax exceeds the aggregate amount of interest chargeable or charged on such disputed tax and penalty leviable or levied on such disputed tax, the excess shall be ignored for the purpose of computation of amount payable under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t payable by such an assessee (declarant) under the provisions of the Direct Tax Vivad Se Vishwas Act, 2020 shall be as in the above Table. 35. In this case, the "tax arrear" as per Section 2(o) of the Direct Tax Vivad Se Vishwas Act, 2020, is the aggregate amount of the disputed tax and interest charged on such "disputed tax" only. Thus, ordinarily only the "disputed tax" as defined in Section 2(j) of the Direct Tax Vivad Se Vishwas Act, 2020 is to be paid. Thus, a sum of Rs. 28,47,653/- was payable in terms of Sl.No.(a) to Table to Section 3 of the Direct Tax Vivad Se Vishwas Act, 2020. 36. The petitioner had challenged the determination made in the Assessment Order dated 26.03.2015 before the respondent under Section 264 of the Income Tax Act, 1961 by filing a revision application. The said application was rejected on 14.01.2016. The petitioner had successfully challenged the same in W.P.No.9148 of 2017 in respect of which the Income Tax Department had filed W.A.No.4223 of 2019 before the Division Bench of this Court. 37. As per 1st Proviso to Section 3 of the Direct Tax Vivad Se Vishwas Act, 2020, where an appeal or writ petition or special leave petition is filed by the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calculated in Table No.1. The aforesaid 50% of Rs. 28,47,653/- was not paid before 31.03.2020. Thus, the petitioner has to pay only Rs. 14,23,826.50/-. A sum of Rs. 19,29,955/- was paid in excess (Rs.33,53,781/- - Rs. 14,23,826.50/- (being 50% of tax due of Rs. 28,47,653/- in terms of the 1st Proviso to Section 3 of Direct Tax Vivad Se Vishwas Act, 2020). 41. As per Section 7 of the Direct Tax Vivad Se Vishwas Act, 2020, only amounts paid in pursuance of a declaration made under Section 4 shall not be refundable under any circumstances. Here, no amount has been paid by the petitioner pursuant to the declaration filed under Section 4 of the Direct Tax Vivad Se Vishwas Act, 2020. As per Explanation to Section 7 of the Direct Tax Vivad Se Vishwas Act, 2020, where the declarant had paid any amount under the Income Tax Act, 1961 in respect of his "tax arrear" which exceeds the amount payable under Section 3 of the Direct Tax Vivad Se Vishwas Act, 2020, he / she shall be entitled to a refund of such excess amount. However, the said person will not be entitled to interest on such excess amount. Section 7 of the Direct Tax Vivad Se Vishwas Act, 2020 reads as under:- "7. No refund of amo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
