TMI Blog2021 (7) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal Having observed that the pending Appeal is a Revenue Appeal, the first proviso of Section 3 of the DTVSV Act would become applicable and, accordingly, the amount payable by the Petitioner would be 50% of the amount, viz., 50% of the disputed tax. - WRIT PETITION NO.1028 OF 2021 - - - Dated:- 7-7-2021 - SUNIL P. DESHMUKH AND ABHAY AHUJA, JJ. Mr. Percy Pardiwalla, Senior Advocate i/by Mr. Atul Jasani, Advocates for Petitioner. Ms. S.V. Bharucha, Advocate for Respondents. JUDGMENT : (PER ABHAY AHUJA, J.) 1. By this Petition filed under Article 226 of the Constitution of India, 1950, Petitioner is challenging the validity of Form-3, dated 28th January, 2021 and 26th March, 2021 issued under Section 5 of the Direct Tax Vivad Se Vishwas Scheme, 2020 (the DTVSV Act ) by the Designated Authority for Assessment Year 2002-2003. 2. Petitioner is a bank established in the Netherlands and it is a part of the Rabobank Group worldwide. It is submitted that Petitioner is a regular assessee under the Income Tax Act, 1961 (the IT Act ). 3. Petitioner had filed a Return of Income on 31st March, 2003 declaring nil income. The Assessment Order was passed on 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or partly carried on. The conclusion is that the Assessee was not having fixed place of business in India. Hence, the First Appellate Authority rightly held that the provisions of Article 5 (1) were inapplicable. It is in these circumstances we are surprised that the Tribunal still deems it ft and proper to remand the case. If there was indeed no material on record, then, the above conclusion was impossible to be reached. 27. Be that as it may, we do not wish to express any opinion on the rival contentions for it may prejudice both sides. In fact, resorting to such shortcuts, results in wastage of precious judicial time of the Tribunal as also Higher courts and delaying the collection and recovery of Revenue, if any. It only enables the parties to postpone the inevitable. It also results in uncertainty and chaos. Judicial decisions have to be consistent and all the more there should be no confusion. There ought to be some predictability and when given facts and circumstances give rise to certain legal principles which parties assert are applicable, then, as a last fact finding authority, the Tribunal could have summoned all records and thereafter should have arrived at a categ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the tax arrears, instead of 50% as claimed by Petitioner. 6. Being aggrieved by the same, Petitioner is before us for the following reliefs :- a. to issue a Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate Writ, Order or Direction under Article 226 of the Constitution of India calling for the records of the Petitioner s case and after examining the legality and validity thereof, quash and set aside the Impugned Forms No.3 dated 28th January 2021 (Exhibit J ) and 26th March 2021 (Exhibit L ) issued by Respondent No.1 for the assessment year 2002-03; b. to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or Direction under Article 226 of the Constitution of India, ordering and directing Respondent No.1 to forthwith withdraw and cancel the Impugned Forms No.3 dated 28th January 2021 (Exhibit J ) and 26th March 2021 (Exhibit L ) issued by Respondent No.1 for the assessment year 2002-03 and further ordering and directing Respondent No.1 to issue Form No.3 treating the Petitioner as the Respondent and consequently determining the amount payable under the VSV Act at 50% of the tax arrears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 per cent. of disputed tax: Provided that where the ten per cent. 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 per cent. of the disputed tax: provided that where the twenty-five per cent. 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 exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, in a case where the Appeal is filed by the Income Tax authority, the amount payable shall be one-half of the amount calculated. The question is whether Petitioner is eligible for payment of 50% of disputed tax or 100%. 11. In this case, assessing officer had made addition with respect to permanent establishment in the case of Petitioner and consequently denied it benefits of the double taxation avoidance agreement. The entire income was taxed at 40% instead of 10% as declared by Petitioner. Then the matter was appealed to CIT(A). The additions were deleted. Against the said deletions, the Department filed an Appeal before the ITAT being ITA No.4632/MUM/2006 against the order of CIT(A). The Tribunal restored the matter back to the assessing officer for fresh examination. It is stated that the Department had accepted this order of the ITAT. However, Petitioner challenged this order before this Court by way of an Appeal raising the following two questions :- (i): Whether, on the facts and in the circumstances of the case and in law, the Tribunal was justified in not concluding that the Appellant does not have a Permanent Establishment in India and instead setting aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court dated 29th August, 2018. This would leave nothing more for us to say except that the Revenue has completely misunderstood the facts. In the whole process, what is resurrected under orders of High Court is not the proceeding in ITAT by Petitioner, but of the Revenue preferred under Section 253 of the IT Act bearing No. 4632/MUM/2006, where the Revenue is Appellant. May be the Appeal by the Revenue is revived at the instance of Petitioner because of its proceedings in the High Court, but that would by no stretch of imagination make the appeal bearing No. 4632/MUM/2006 before ITAT, an appeal by Petitioner under Section 253 of the IT Act. Setting aside of order of the ITAT in the Appeal by Revenue and remand to ITAT postulates revival of appeal by the Revenue. It would therefore not be correct to say that the matter bearing Appeal No.4632/MUM/2006 under Section 253 of the IT Act before the ITAT in the present case becomes an Appeal by Petitioner, as ITA No. 4632/MUM/2006 has been restored to the ITAT on the Assessee s Appeal to High Court and not of the Revenue. Considering that the objective of the Scheme is to not only benefit the tax payer, but also the Revenue's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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