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TMI Blog2018 (2) TMI 1596X X X X Extracts X X X X X X X X Extracts X X X X ..... e following order was passed : "Rule, Returnable after six weeks. Respondents waives service. The Counsel for the petitioner stated that in view of the fact that the time for payment was expiring, the petitioner has deposited the amount demanded by the respondents. He, however wants it to be made clear that the payment shall be subject to the outcome of this petition. We clarify accordingly." 3. This petition was called out and heard on 22nd January, 2018. At that time, the respondents were not present. As the hearing was not complete, the petition stood adjourned from time to time. At none of the dates or even today when the petition was called out, none appeared for the respondents. However, the respondents have filed an affidavit in reply dated 22nd July, 1999 of Mr. Shivaji Dash - respondent no.1 herein opposing grant of any relief to the petitioner. Therefore, we proceeded to decide the petition in the absence of the Revenue being represented but after taking into consideration the affidavit-in-reply dated 22nd July, 1999 filed on behalf of the respondent. 4. The petitioner is an individual assessed to tax under the Act. For the Assessment Year 198485 the petitioner was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here only interest and / or penalty is the outstanding due payable under the Act, then, on partial payment of the same, the waiver would be available to the rest of the amount of interest and / or penalty. The above Kar Vivad Scheme come into effect on 1st September, 1998 and was open for availment by any assessee till 31st December, 1998. Thereafter, the time to avail of the scheme was extended from 31st December, 1998 up to 31st January, 1999. 8. On 22nd December, 1998, the petitioner filed his declaration under the Kar Vivad Scheme seeking to avail the benefit of waiver of interest on payment of the tax arrears, as provided thereunder i.e. the amounts payable under the assessment order as modified by the order of the CIT(A) and which were subject matter of appeal filed by him before the Tribunal. The above declaration pointed out that there was an arrears of tax to the extent of Rs. 87/outstanding as on 31st March, 1998. Thus, the petitioner sought to pay the tax arrears at 40% of the disputed income. The disputed income was computed under the Kar Vivad Scheme on the basis of the tax arrears outstanding as on 31st March, 2099. On payment of the tax at 40% of disputed income i.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending appeals of both the assessee as well as the Revenue in respect of which the tax was not paid. In its revised declaration, the arrears of tax outstanding on 31st March, 1998 was determined at Rs. 2,31,788/and the arrears of interest was Rs. 6,32,475/. In terms of the Kar Vivad Scheme, the petitioner paid the tax at 40% on the disputed income of Rs. 1,37,356/and sought complete waiver of interest in terms of the Kar Vivad Scheme. 12. Thereafter, on 19th February, 1999, the respondent no.1 issued Certificate under Section 90(1) of the Kar Vivad Scheme settling the tax dispute between the petitioner and the Revenue. The Certificate dated 19th February, 1999 after referring to the petitioner's declaration dated 22nd December, 1998, appears to be a common Certificate disposing of the petitioner's two declarations dated 22nd December, 1998 and revised declaration dated 22nd January, 1998. The Certificate dated 19th February, 1999 works out the tax arrears for Assessment Year 1984-85 at interest of Rs. 6,58,152/as reflected in the declaration dated 22nd December, 1998 and determines the settlement of the interest payable at 50% thereof i.e. Rs. 3,29,071/. It completely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmunication did not address the issue of tax arrears of Rs. 87/as declared in the declaration dated 22nd December, 1998. 15. This non correction / modification of the Certificate dated 19th February, 1999 by the respondent no.1 led to the filing of this petition. At the time of admission of this petition, it was made clear that although the payment in terms of declaration had been made, it is subject to the result of the petition. 16. The affidavit dated 22nd July, 1999 of the respondent no.1 in reply to the petition was filed. This affidavit states that the tax arrears was unpaid as on 31st March, 1998 had been adjusted against the refund of Rs. 10,800/due to the petitioner for the Assessment Year 1997-98. In the above view, the affidavit states that there was no arrears of tax which would enable the petitioner to secure complete waiver of interest under the Kar Vivad Scheme. However, the affidavit is silent on the date when the above adjustment of the pending tax arrears of Rs. 87/was made against the refund of Rs. 10,800/. 17. Mr. Gopal, learned Counsel appearing for the petitioner, in support of the petition, submits as under : (a) The Certificate dated 19th February, 1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals of the assessee have to be filed by an assessee wanting to take the benefit of the scheme and both the declarations are to be individually disposed of. We find that the action of the Department of respondent no.1 in issuing only one Certificate in respect of two separate applications filed by the petitioner, would itself evidence the fact that the Department has not strictly been following directions contained in letter dated 17th December, 1998 to all the Chief Commissioners of Income Tax. The necessity of having issuing two separate Certificates when the instructions of the CBDT requires two separate declarations to be filed, would make it open for the assessee to comply with the conditions within a period of 30 days, in respect of any of the one of the two declarations filed by him. Once the consolidated Certificate has been issued, then, the option of seeking to settle one of the two declarations filed by the assessee is no longer available. 19. In any view of the matter, the above larger issue need not be addressed for the purpose of this petition. We proceed on the basis that it is open to dispose of two declarations by one Certificate. Nevertheless, we find t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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