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2023 (9) TMI 894 - BOMBAY HIGH COURTValidity of rejection of the declarations filed by petitioner under the DTVSV Act - prosecution u/s. 276C(2) of the Income Tax Act - whether the provisions of DTVSV Act shall apply to petitioner? - HELD THAT:- Petitioner’s case would come under sub-clause (ii) of Section 9(a) which says provisions of the DTVSV Act would not apply in respect of “tax arrear” relating to an assessment year in respect of which prosecution has been instituted on or before the date of filing of declaration. Therefore, the prosecution must be in respect of tax arrear relating to an assessment year. As held in Macrotech [2021 (3) TMI 1089 - BOMBAY HIGH COURT] the intention of the legislature was that the provisions of DTVSV Act shall not, in view of Section 9(a)(ii), apply in the case of a declarant in whose case a prosecution has been instituted in respect of tax arrear relating to an assessment year on or before the date of filing of declaration. The prosecution has to be in respect of tax arrear which naturally is relatable to an assessment year. In Macrotech (Supra) also the facts were that the prosecution had been initiated against petitioner therein under Section 276C(2)of the Act because of the delayed payment of the balance amount of the self assessment tax. The Court held that such delayed payment cannot be construed to be a tax arrear within the meaning of Section 2(1)(o) of the Act. Therefore, such a prosecution cannot be said to be in respect of tax arrear and hence, petitioner in that case was declared to be entitled to file a declaration under the DTVSV Act. As permissible under Office Memorandum [F. No.404/72/93-ITCC] dated 31st July 2017, petitioner had even deposited 20% of the demand and hence, is not an assessee in default. Later, Mr. Sridharan stated that the entire amount has been paid. We must also note that under Section 9(a)(ii) of DTVSV Act, the only exclusion visualised is a pendency of prosecution in respect of tax arrear relatable to an assessment year as on the date of filing the declaration and not pendency of a prosecution in respect of an assessment year on any issue. In the petition before us also prosecution has been instituted against petitioner under Section 276C(2) of the Act. Therefore, in our view, Macrotech (Supra) will squarely apply to the facts and circumstances of this case. The declaration of petitioner filed on 31st January 2021 for Assessment Years 2010-2011 and 2011-2012 would have to be decided by respondent no. 1 in conformity with the provisions of DTVSV Act.
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