TMI Blog2002 (11) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... ich have taken place before the crucial date which is relevant under the Kar Vivad Samadhan Scheme 1998, and thereafter pass orders according to law. The points (A), (B) and (C) are answered as above. - - - - - Dated:- 26-11-2002 - Judge(s) : E. PADMANABHAN. JUDGMENT E. PADMANABHAN J.-The petitioner prays for the issue of a writ of certiorarified mandamus calling for the records of the respondent in C. No. 536/ KVSS of 1998-99/IT/CBE dated May 12,1999, modifying the certificate in Form No. 2A, dated February 22, 1999, quash the same and further direct the respondent to pass fresh orders after giving opportunity to the petitioner considering the letter dated March 18, 1998. Heard Mr. R. Janakiraman, learned counsel appearing for the petitioner, and Mr. Naresh Kumar, learned standing counsel appearing for the respondent. With the consent of counsel for either side the writ petition itself is taken up for final disposal. The petitioner is an assessee on the file of the Income-tax Officer, Ward I(10), Salem-7. For the assessment year 1992-93, the assessment was completed under section 143(3) read with section 147 on March 26, 1998, on a total income of Rs. 2,41,170 as again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m No. 1A and without assigning any reason or opportunity the respondent fixed the arrears of tax at Rs. 1,14,223, Rs. 18,032 and Rs. 33,609, respectively, for the said three assessment years. The petitioner addressed the respondent on March 18, 1999, while submitting a detailed working sheet and requested the respondent to rectify the demand raised in Form No. 2A, besides requesting the respondent to furnish a working sheet of the amounts demanded in Form No. 2A. The respondent revised the demand by proceedings dated May 12, 1999 to Rs. 53,845 for 1992-93, Rs. 7,926 for 1993-94 and Rs. 13,909 for 1994-95. On June 4, 1999, the petitioner paid tax for the said three assessment years as per the declaration in Form No. 1A. The petitioner contended that he is not liable to pay the additional demand for which no details have been disclosed by the respondent. Despite the said representation, the respondent by communication dated July 27, 1999, directed payment of Rs. 75,680 while threatening to forfeit the benefit under the Kar Vivad Samadhan Scheme. Challenging the said demand, the present writ petition has been filed. The respondent has not filed a counter, but produced the file a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheme ? All the points could be considered together conveniently. Concedingly, either before passing the original order or before issuing the Form No. 2A calling upon the petitioner to pay the tax/sum due under the Scheme no opportunity of hearing has been allowed. The orders have been passed without affording an opportunity to the petitioner and liability has been fastened on the petitioner. It is not as if the declaration submitted by the petitioner has been accepted which may not require an opportunity of hearing. It is fundamental and well settled that when a burden to pay additional tax liability is sought to be fastened an opportunity should have been afforded and materials for such fastening should have been disclosed. Further, the principles of natural justice should be read into the provisions of the Kar Vivad Samadhan Scheme. The proceedings of the Commissioner dated May 12, 1999, proceed on the premise that the Commissioner of Income-tax (Appeals) has given only a direction to re-examine the issue involving Rs. 1,10,000 and no specific order has been passed while allowing the assessee's contentions advanced in respect of two of the disputed items. In this re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings of the Assessing Officer in respect of the said two items have been set aside and as on the date of filing of declaration the petitioner could not have invoked the scheme as there is no assessment, nor it could be stated that the petitioner is liable to pay tax as additions made by the Assessing Officer have been set aside and the matter has been remitted back to the original authority for fresh proceedings. Till fresh proceedings are passed by the Assessing Officer in respect of the said items Nos. (ii) and (iii) it cannot be stated that it is a disputed tax and in respect of which Kar Vivad Samadhan Scheme could be invoked. In the present case, the respondent has proceeded as if those items also are to be included as items of disputed tax. This is a misconception of the scheme itself. In terms of the Kar Vivad Samadhan Scheme 1998, though there is no dispute that the Scheme applies in respect of tax arrears or disputed tax, in respect of which appeals are pending. When the additions have been ordered to be deleted and the matter has been remitted, till the Assessing Officer decides one way or the other in respect of the remanded portion, it cannot be stated that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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