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Monday, August 11, 2014

Kar Vivad Samadhan Scheme, 1998 - Pending Revision for the year 1997-98 filed an application under the scheme - with out passing orders in that application, first dismissed the revision and later dismissed this application - their lordships held that The approach of the 1st respondent is totally untenable, apart from being opposed to the letter and spirit of the Scheme. In a way, he has read certain aspects into the Scheme, which the parliament did not intend to. The mere fact that a revision, which was pending before him was dismissed, cannot constitute the basis to deny the relief under the Scheme. We have taken similar view in W.P.No.16170 of 2000 and batch. We, therefore, allow the writ petition and set aside the impugned order. =Writ Petition No.5358 of 1999 09-07-2014 East India Petroleum Limited.appellant. The Commissioner of Income Tax and another...Respondents = 2014 - July. Part - http://judis.nic.in/judis_andhra/filename=11614

Kar Vivad Samadhan Scheme, 1998 - Pending Revision for the year 1997-98 filed an application under the scheme - with out passing orders in that application, first dismissed the revision and later dismissed this application - their lordships held that The approach of the 1st respondent is totally untenable, apart from being opposed to the letter and spirit of the Scheme.  In a
way, he has read certain aspects into the Scheme, which the parliament did not intend to.  The mere fact that a revision, which was pending before him was dismissed, cannot constitute the basis to deny the relief under the Scheme.  We have taken similar view in W.P.No.16170 of 
2000 and batch.  We, therefore, allow the writ petition and set aside the impugned order. =

In the assessment year 1997-98, the Assessing Authority passed
an order, dated 18.03.1998, taking the view that the sum covered by
prima facie adjustment of Rs.79,86,590/-, under Section 143(1)(a) of
the Income Tax Act, 1961 (for short the Act), was not proper, and
accordingly, made a demand of Rs.47,10,108/-, as tax.  Additional tax
of Rs.6,86,847/-, under Section 143(1)(a) of the Act and interest of
Rs.7,78,680/-, under Section 234B of the Act, was also demanded. =
When the revision was pending, the Parliament introduced Kar Vivad
Samadhan Scheme, 1998 (for short the Scheme), by amending the
Act.  It provided for the termination of the proceedings at the stage of
appeal, revision or writ petition, before any forum, in case the assessee
offers to pay the amount stipulated under the relevant provisions of the
Scheme.
With a view to avail the benefit under the Scheme, the petitioner
submitted an application in the prescribed form on 16.12.1998.
Incidentally, the 1st respondent is the designated authority to process
the application and he is the one, before whom the revision filed by the
petitioner was pending. The 1st respondent passed an order, dated
01.02.1999, in the revision, rejecting the claim of the petitioner.  Few
days thereafter, i.e. on 26.02.1999, he rejected the application, filed
under the Scheme.  This writ petition is filed challenging the order,
dated 26.02.1999.=

In the instant case, the 1st respondent was the authority to deal
with the application filed under the Scheme as well as to hear the
revision.  Knowing fully well that the application filed by the petitioner is
pending before him, he has chosen to take up the revision and
dismissed the same through order, dated 01.02.1999.  He cited the
dismissal thereof as a ground for refusing to extend the benefit under
the Scheme.  The approach of the 1st respondent is totally untenable,
apart from being opposed to the letter and spirit of the Scheme.  In a
way, he has read certain aspects into the Scheme, which the parliament
did not intend to.  The mere fact that a revision, which was pending
before him was dismissed, cannot constitute the basis to deny the relief
under the Scheme.  We have taken similar view in W.P.No.16170 of 
2000 and batch. 

2014 - July. Part - http://judis.nic.in/judis_andhra/filename=11614

THE HONBLE SRI JUSTICE L.NARASIMHA REDDY AND  THE HONBLE SRI JUSTICE CHALLA KODANDA RAM              

Writ Petition No.5358 of 1999

09-07-2014

East India Petroleum Limited.appellant.

The Commissioner of Income Tax and another...Respondents  

Counsel for appellant:  Sri K.Raji Reddy

Counsel for Respondents : Sri J.V.Prasad

<GIST:

>HEAD NOTE:  

?Cases referred

THE HONBLE SRI JUSTICE L.NARASIMHA REDDY        

AND

THE HONBLE SRI JUSTICE CHALLA KODANDA RAM          


Writ Petition No.5358 of 1999

ORDER: (Per the Honble Sri Justice L.Narasimha Reddy)

      The petitioner is a Limited Company and is assessed to income
tax.  In the assessment year 1997-98, the Assessing Authority passed
an order, dated 18.03.1998, taking the view that the sum covered by
prima facie adjustment of Rs.79,86,590/-, under Section 143(1)(a) of
the Income Tax Act, 1961 (for short the Act), was not proper, and
accordingly, made a demand of Rs.47,10,108/-, as tax.  Additional tax
of Rs.6,86,847/-, under Section 143(1)(a) of the Act and interest of
Rs.7,78,680/-, under Section 234B of the Act, was also demanded. 

      The petitioner filed a revision under Section 264(3) of the Act,
before the Commissioner of Income Tax, the 1st respondent herein.
When the revision was pending, the Parliament introduced Kar Vivad
Samadhan Scheme, 1998 (for short the Scheme), by amending the  
Act.  It provided for the termination of the proceedings at the stage of
appeal, revision or writ petition, before any forum, in case the assessee
offers to pay the amount stipulated under the relevant provisions of the
Scheme.  

      With a view to avail the benefit under the Scheme, the petitioner
submitted an application in the prescribed form on 16.12.1998.
Incidentally, the 1st respondent is the designated authority to process
the application and he is the one, before whom the revision filed by the
petitioner was pending. The 1st respondent passed an order, dated
01.02.1999, in the revision, rejecting the claim of the petitioner.  Few
days thereafter, i.e. on 26.02.1999, he rejected the application, filed
under the Scheme.  This writ petition is filed challenging the order,
dated 26.02.1999.

      Heard Sri K.Raji Reddy, learned counsel for the petitioner, and
Sri J.V.Prasad, learned Standing Counsel for the respondents.

      The petitioner felt aggrieved by the order passed by the Income
Tax Authority, imposing tax, penalty and interest on a sum covered by
prima facie adjustment.  The remedy of revision under Section 264(3) of
the Act, was availed before the 1st respondent.  During the pendency of
that revision, the Scheme came into force.  Accordingly, an application
was filed in the prescribed form.

      One of the conditions for extending the benefit under the
Scheme is that a revision, appeal or proceedings must be pending
before the Authorities or Tribunal, created under the Act, or High Court
or Supreme Court.  That condition stood fulfilled, on account of the
pendnecy of the revision before the 1st respondent.  A perusal of the
Scheme discloses that the extension of benefit thereunder is
independent of merits, or otherwise of the claims in the appeals,
revision or other proceedings.  Further, once it emerges that an appeal,
revision or other proceedings were pending by the time the application
was filed, it hardly makes any difference, if such proceedings are
terminated by the concerned authority, unmindful of the pendency of
the application.

      In the instant case, the 1st respondent was the authority to deal
with the application filed under the Scheme as well as to hear the
revision.  Knowing fully well that the application filed by the petitioner is
pending before him, he has chosen to take up the revision and
dismissed the same through order, dated 01.02.1999.  He cited the
dismissal thereof as a ground for refusing to extend the benefit under
the Scheme.  The approach of the 1st respondent is totally untenable,
apart from being opposed to the letter and spirit of the Scheme.  In a
way, he has read certain aspects into the Scheme, which the parliament
did not intend to.  The mere fact that a revision, which was pending
before him was dismissed, cannot constitute the basis to deny the relief
under the Scheme.  We have taken similar view in W.P.No.16170 of 
2000 and batch. 

      We, therefore, allow the writ petition and set aside the impugned
order.  There shall be no order as to costs.

      The miscellaneous petition filed in this writ petition shall also
stand disposed of.
____________________  
L.NARASIMHA REDDY, J.    
____________________  
CHALLA KODANDA RAM, J.    
Date:09.07.2014

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