TMI Blog2021 (5) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... cipal Commissioner of Income Tax (Central) 1, Mumbai rejecting the declaration of the petitioner under the Direct Tax Vivad Se Vishwas Act, 2020 ( for short DTVSV Act). 2. The petitioner Assessee had filed a return of income for the Assessment Year 2014-15 ( for short AY ) under Section 139(1) of the Income Tax Act ( for short The IT Act ) declaring a total income of ₹ 67,55,710/-. The assessment had been completed under section 143(3) of the IT Act assessing petitioner s income at ₹ 67,66,640/-. 3. In 2018, a survey action had taken place under Section 133A of the IT Act on one Mr. Sandipkumar N. Jha and during the same, some incriminating documents were claimed to have been found in respect of petitioner showing that said Mr.Jha had paid ₹ 5,76,00,000/- in cash to petitioner for purchase of shop and office premises. Thereafter, in 2019, a survey action had been undertaken at the office premises of petitioner. However, no incriminating material was found during the course of survey. Under pressure, the petitioner agreed to offer the amount of ₹ 5,76,00,000/- allegedly received, as his income in the statement recorded under section 131 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Mr. Jain purports to take us through provisions of the DTVSV Act referring to that Section 2 of the DTVSV Act defines the terms under the Act, Section 3 is in respect of the amount of tax payable by the declarant, referring to the percentage at which the same is payable by the declarant by specified date and or before the notified date. Section 4 requires that declaration referred to in section 3 shall be filed by the declarant before the designated authority in the prescribed form and upon filing the declaration, appeal pending before the appellate authority in respect of the disputed income or disputed interest or disputed penalty or disputed fee and tax arrear shall be deemed to have been withdrawn from the date on which certificate under sub-section (1) of section 5 is issued by the designated authority. The Act prescribes under Section 5 (1) that the designated authority shall, within a period of 15 days from the date of receipt of the declaration, by order, determine the amount payable by the declarant in accordance with the provisions of the Act and grant a certificate to the declarant containing particulars of the tax arrear. Section 9 of the Act refers to the cases t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, it is undisputed that the petitioner has filed appeal and it is indisputable there exists dispute as defined under the Rules. He takes us through the relevant details referring to that the petitioner is disputing ₹ 5,76,00,000/- in the appeal and the specific ground in this respect has also been taken up. He submits, it is not the case of the revenue that the amount of ₹ 5,76,00,000/- is not disputed amount in the appeal before the appellate authority. 14. Learned counsel for the respondents contends that the writ petition is not maintainable, as the appeal filed by the petitioner against the assessment order, does not involve any disputed issue arising out of the assessment order. The amount contested by the petitioner has been disclosed by the petitioner in his return of income and thus, the appeal itself being untenable and the same cannot be resolved under the DTVSV Act. It is being contended that the assessee cannot be aggrieved in respect of income voluntarily declared in return of income and the petitioner can be said to be aggrieved only to the extent of addition made of ₹ 42,840/- and not in respect of the amount which he declared in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns income tax , wherein the appeal is pending before appellate forum as on the specified date, the amount of tax payable by the appellant, if such appeal were to be decided against him. Plainly reading, it would emerge that the disputed tax means an income tax payable by assessee under the provisions of the IT Act, on the income assessed by the authority and where any appeal is pending before the appellate forum on the specified date, against any order relating to tax payable under IT Act. It does not presumably seem to ascribe any qualification to the matter/appeal, save, that it should concern Income Tax Act. It would not be construed limiting and restricting it as is sought to be submitted on behalf of the Respondents. It does not appear that merits of appeal/ matter would be consideration to qualify for disputed tax under DTVSV Act. 19. It would be pertinent also to refer to that disputed income has also been defined under clause (g) of section 2(1) to mean the whole or such measure of total income as is relatable to disputed tax. Further the definition of dispute as appearing under rule 2(b) of the DTVSV rules shows that dispute means an appeal/writ petition or spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct shall not apply- (a) in respect of tax arrear,- (i) relating to an assessment year in respect of which an assessment has been made under sub-section (3) of section 143 or section 144 or section 153A or section 153C of the Income-tax Act on the basis of search initiated under section 132 or section 132A of the Income-tax Act, if the amount of disputed tax exceeds five crore rupees; (ii) relating to an assessment year in respect of which prosecution has been instituted on or before the date of filing of declaration; (iii) relating to any undisclosed income from a source located outside India or undisclosed asset located outside India; (iv) relating to an assessment or reassessment made on the basis of information received under an agreement referred to in section 90 or section 90A of the Income-tax Act, if it relates to any tax arrear; (b) to any person in respect of whom an order of detention has been made under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on or before the filing of declaration : Provided that - (i) such order of detention, being an order to which the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner s tax liability cannot be construed as disputed tax, while going by the definition and the scheme of DTVSV Act, when those do not make any distinction and categorize the appeals. The act does not purport to go into the grounds of appeal or for that matter, inside the return. 25. The reasons given tend to go beyond the provisions of the DTVSV Act and rules and are at cross roads with intention and object of the enactment. The reasons are not compatible with the provisions of the Act and rules. 26. Learned counsel had submitted that the petitioner has not been offered any opportunity of hearing relying on Umanath Pandey Vs. State of U. P., reported in 2010 (20) STR 268 (SC) contending that may not be it is provided for, however, the same will have to be read into and the principles will have to be followed, while determining tax payable adverse to the assessee. He also refers to orders of this court in the case of Sabareesh Pallikere, Proprietor of M/s. Finbros Marketing vs. Jurisdictional Designated Committee (bearing Writ Petition No. WP(L)/5510/2020), wherein it is observed that it would be in defiance of logic and contrary to the very object of the scheme t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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