In Respect Of Tax Arrear Relating To An Assessment Year In Respect Of Which Prosecution Has Been Instituted

CASE TITLE:

Pragati Pre Fab India Pvt. Ltd. Vs. Union of India and Ors.

DATE OF ORDER:

12^th September, 2023

BENCH:

Justice KR Shriram and Justice Dr. NK Gokhale

PARTIES:-

Petitioner- Pragati Pre Fab India Pvt. Ltd.

Respondent-

1. Principal Commissioner of Income Tax
2. The Central Board of Direct Taxes, Government of India, Ministry of Finance and  Department of Revenue
3. The Union of India

RELEVANT PROVISIONS:-

1. Income Tax Act, 1961:-

• Section 276C(2):-

If a person wilfully attempts in any manner whatsoever to evade the payment of any tax, penalty or interest under this Act, he shall, without prejudice to any penalty that may be imposable on him under any other provision of this Act, be punishable with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and shall, in the discretion of the court, also be liable to fine. Explanation.- For the purposes of this section, a wilful attempt to evade any tax, penalty or interest chargeable or imposable under this Act or the payment thereof shall include a case where any person-

(i) has in his possession or control any books of account or other documents (being books of account or other documents relevant to any proceeding under this Act) containing a false entry or statement; or

(ii) makes or causes to be made any false entry or statement in such books of account or other documents; or

(iii) wilfully omits or causes to be omitted any relevant entry or statement in such books of account or other documents; or

(iv) causes any other circumstance to exist which will have the effect of enabling such person to evade any tax, penalty or interest chargeable or imposable under this Act or the payment thereof.

• Section 143(1):-

(1) Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142, such return shall be processed in the following manner, namely:—

(a)  the total income or loss shall be computed after making the following adjustments, namely:—

 (i)  any arithmetical error in the return; [***]

(ii)  an incorrect claim, if such incorrect claim is apparent from any information in the return;

[(iii) disallowance of loss claimed, if return of the previous year for which set off of loss is claimed was furnished beyond the due date specified under sub-section (1) of section 139;

(iv)  disallowance of expenditure indicated in the audit report but not taken into account in computing the total income in the return;

(v) disallowance of deduction claimed under sections 10AA, 80-IA, 80-IAB, 80-IB, 80-IC, 80-ID or section 80-IE, if the return is furnished beyond the due date specified under sub-section (1) of section 139; or

(vi)  addition of income appearing in Form 26AS or Form 16A or Form 16 which has not been included in computing the total income in the return:

Provided that no such adjustments shall be made unless an intimation is given to the assessee of such adjustments either in writing or in electronic mode:

Provided further that the response received from the assessee, if any, shall be considered before making any adjustment, and in a case where no response is received within thirty days of the issue of such intimation, such adjustments shall be made:]

⁸⁴[Provided also that no adjustment shall be made under sub-clause (vi) in relation to a return furnished for the assessment year commencing on or after the 1st day of April, 2018;]

(b)  the tax ⁸⁵[, interest and fee], if any, shall be computed on the basis of the total income computed under clause (a);

(c)  the sum payable by, or the amount of refund due to, the assessee shall be determined after adjustment of the tax ⁸⁵[, interest and fee], if any, computed under clause (b) by any tax deducted at source, any tax collected at source, any advance tax paid, any relief allowable under an agreement under section 90 or section 90A, or any relief allowable under section 91, any rebate allowable under Part A of Chapter VIII, any tax paid on self-assessment and any amount paid otherwise by way of tax ⁸⁶[, interest or fee];

(d)  an intimation shall be prepared or generated and sent to the assessee specifying the sum determined to be payable by, or the amount of refund due to, the assessee under clause (c); and

(e)  the amount of refund due to the assessee in pursuance of the determination under clause (c) shall be granted to the assessee:

Provided that an intimation shall also be sent to the assessee in a case where the loss declared in the return by the assessee is adjusted but no tax ⁸⁶[, interest or fee] is payable by, or no refund is due to, him:

Provided further that no intimation under this sub-section shall be sent after the expiry of one year from the end of the financial year in which the return is made.

Explanation.—For the purposes of this sub-section,—

(a)  "an incorrect claim apparent from any information in the return" shall mean a claim, on the basis of an entry, in the return,—

 (i)  of an item, which is inconsistent with another entry of the same or some other item in such return;

(ii)  in respect of which the information required to be furnished under this Act to substantiate such entry has not been so furnished; or

(iii)  in respect of a deduction, where such deduction exceeds specified statutory limit which may have been expressed as monetary amount or percentage or ratio or fraction;

(b)  the acknowledgement of the return shall be deemed to be the intimation in a case where no sum is payable by, or refundable to, the assessee under clause (c), and where no adjustment has been made under clause (a).

• Section 147:-

If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year) :

Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year:

Provided further that nothing contained in the first proviso shall apply in a case where any income in relation to any asset (including financial interest in any entity) located outside India, chargeable to tax, has escaped assessment for any assessment year:

Provided also that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment.

Explanation 1.—Production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso.

Explanation 2.—For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely :—

(a)  where no return of income has been furnished by the assessee although his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax ;

(b)  where a return of income has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return ;

(ba)  where the assessee has failed to furnish a report in respect of any international transaction which he was so required under section 92E;

(c)  where an assessment has been made, but—

 (i)  income chargeable to tax has been underassessed ; or

(ii)  such income has been assessed at too low a rate ; or

(iii)  such income has been made the subject of excessive relief under this Act ; or

(iv)  excessive loss or depreciation allowance or any other allowance under this Act has been computed;

(ca) where a return of income has not been furnished by the assessee or a return of income has been furnished by him and on the basis of information or document received from the prescribed income-tax authority, under sub-section (2) of section 133C, it is noticed by the Assessing Officer that the income of the assessee exceeds the maximum amount not chargeable to tax, or as the case may be, the assessee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return;

(d)  where a person is found to have any asset (including financial interest in any entity) located outside India.

Explanation 3.—For the purpose of assessment or reassessment under this section, the Assessing Officer may assess or reassess the income in respect of any issue, which has escaped assessment, and such issue comes to his notice subsequently in the course of the proceedings under this section, notwithstanding that the reasons for such issue have not been included in the reasons recorded under sub-section (2) of section 148.

Explanation 4.—For the removal of doubts, it is hereby clarified that the provisions of this section, as amended by the Finance Act, 2012, shall also be applicable for any assessment year beginning on or before the 1st day of April, 2012.

• Section 148:-

Issue of notice where income has escaped assessment

(1) ] Before making the assessment, reassessment or recomputation under section 147, the Assessing Officer shall serve on the assessee a notice requiring him to furnish within such period, not being less than thirty days, as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139.]

(2)  The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so.]

• Section 144:-

If any person—

(a) fails to make the return required by any notice given under sub-section (2) of section 139 and has not made a return or a revised return under sub-section (4) or sub-section (5) of that section, or

(b) fails to comply with all the terms of a notice issued under sub-section (1) of section 142, or

(c) having made a return, fails to comply with all the terms of a notice issued under sub-section (2) of section 143,

the Income-tax Officer, after taking into account all relevant material which the Income-tax Officer has gathered, shall make the assessment of the total income or loss to the best of his judgment and determine the sum payable by the assessee or refundable to the assessee on the basis of such assessment.

• Section 156:-

Notice of demand When any tax, interest, penalty, fine or any other sum is payable in consequence of any order passed under this Act, the  Assessing officer shall serve upon the assessee a notice of demand in the prescribed form specifying the sum so payable.

• Section 271(1)(c):-

(1) If the Assessing Officer or the Commissioner (Appeals) or the Principal Commissioner or Commissioner in the course of any proceedings under this Act, is satisfied that any person—

(c) has concealed the particulars of his income or furnished inaccurate particulars of such income

• Section 278B:-

(1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(3) Where an offence under this Act has been committed by a person, being a company, and the punishment for such offence is imprisonment and fine, then, without prejudice to the provisions contained in sub-section (1) or sub-section (2), such company shall be punished with fine and every person, referred to in sub-section (1), or the director, manager, secretary or other officer of the company referred to in sub-section (2), shall be liable to be proceeded against and punished in accordance with the provisions of this Act.

Explanation.—For the purposes of this section,—

 (a) "company" means a body corporate, and includes—

  (i) a firm; and

 (ii) an association of persons or a body of individuals whether incorporated or not; and

 (b) "director", in relation to—

 (i) a firm, means a partner in the firm;

 (ii) any association of persons or a body of individuals, means any member controlling the affairs thereof.

2. The Direct Tax Vivad Se Vishwas Act, 2020:-

• Section 11:-

Power to remove difficulties

(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, not inconsistent with the provisions of this Act, remove the difficulty:

Provided that no such order shall be made after the expiry of a period of two years from the date on which the provisions of this Act come into force.

(2) Every order made under sub-section (1) shall, as soon as may be after it is made, be laid before each House of Parliament.

• Section 3:-

Amount payable by declarant.

Subject to the provisions of this Act, where a declarant files ¹[under the provisions of this Act on or before the such date^* as may be notified], a declaration to the designated authority in accordance with the provisions of section 4 in respect of tax arrear, then, notwithstanding anything contained in the Income-tax Act or any other law for the time being in force, the amount payable by the declarant under this Act shall be as under, namely:--

SI. NO Nature of tax arrear. Amount payable under this Act on or before the ²[31st day of December, 2020 or such later date as may be notified]. Amount payable under this Act on or after the ³[1st day of January, 2021 or such later date as may be notified] but on or before the 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 forthe 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 excess shall be ignored for the purpose of computation of amount payable under this Act.

the aggregate of the amount of disputed tax and thirty-five per cent. of disputed tax: provided that where the thirty- 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 excess shall be ignored for the purpose of computation of amount payable.

(c) where the tax arrear relates to disputed interest or disputed penalty or disputed fee. twenty-five per cent. of disputed interest or disputed penalty or disputed fee. thirty per cent. of disputed interest or disputed penalty or disputed fee:

Provided that in a case where an appeal or writ petition or special leave petition is filed by the income-tax authority on any issue before the appellate forum, the amount payable shall be one-half of the amount in the Table above calculated on such issue, in such manner as may be prescribed:

Provided further that in a case where an appeal is filed before the Commissioner (Appeals) or objections is filed before the Dispute Resolution Panel by the appellant on any issue on which he has already got a decision in his favour from the Income Tax Appellate Tribunal (where the decision on such issue is not reversed by the High Court or the Supreme Court) or the High Court (where the decision on such issue is not reversed by the Supreme Court), the amount payable shall be one-half of the amount in the Table above calculated on such issue, in such manner as may be prescribed:

Provided also that in a case where an appeal is filed by the appellant on any issue before the Income Tax Appellate Tribunal on which he has already got a decision in his favour from the High Court (where the decision on such issue is not reversed by the Supreme Court), the amount payable shall be one-half of the amount in the Table above calculated on such issue, in such manner as may be prescribed.

• Section 9:-

Act not to apply in certain cases.

The provisions of this Act 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 (52 of 1974) on or before the filing of declaration:

Provided that--

(i) such order of detention, being an order to which the provisions of section 9 or section 12A of the said Act do not apply, has not been revoked on the report of the Advisory Board under section 8 of the said Act or before the receipt of the report of the Advisory Board; or

 (ii) such order of detention, being an order to which the provisions of section 9 of the said Act apply, has not been revoked before the expiry of the time for, or on the basis of, the review under sub-section (3) of section 9, or on the report of the Advisory Board under section 8, read with sub-section (2) of section 9, of the said Act; or

 (iii) such order of detention, being an order to which the provisions of section 12A of the said Act apply, has not been revoked before the expiry of the time for, or on the basis of, the first review under sub-section (3) of that section, or on the basis of the report of the Advisory Board under section 8, read with sub-section (6) of section 12A, of the said Act; or

 (iv) such order of detention has not been set aside by a court of competent jurisdiction;

 (c) to any person in respect of whom prosecution for any offence punishable under the provisions of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967), the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Prevention of Corruption Act, 1988 (49 of 1988), the Prevention of Money Laundering Act, 2002 (15 of 2003), the Prohibition of Benami Property Transactions Act, 1988 (45 of 1988) has been instituted on or before the filing of the declaration or such person has been convicted of any such offence punishable under any of those Acts;

(d) to any person in respect of whom prosecution has been initiated by an Income-tax authority for any offence punishable under the provisions of the Indian Penal Code (45 of 1860) or for the purpose of enforcement of any civil liability under any law for the time being in force, on or before the filing of the declaration or such person has been convicted of any such offence consequent to the prosecution initiated by an Income tax authority;

(e) to any person notified under section 3 of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 (27 of 1992) on or before the filing of declaration.

• section 2(1)(o):-

In this Act, unless the context otherwise requires,--

(o)" tax arrear" means,--

(i) the aggregate amount of disputed tax, interest chargeable or charged on such disputed tax, and penalty leviable or levied on such disputed tax; or

(ii) disputed interest; or

(iii) disputed penalty; or

(iv) disputed fee,

as determined under the provisions of the Income-tax Act.

• section 6:-

Immunity from initiation of proceedings in respect of offence and imposition of penalty in certain cases

Subject to the provisions of section 5, the designated authority shall not institute any proceeding in respect of an offence; or impose or levy any penalty; or charge any interest under the Income-tax Act in respect of tax arrear.

3. Constitution of India:-

• Article 14:-

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

• Article 226:-

Power of High Courts to issue certain writs.

(1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without-

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and
furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.

SUBJECT:-

There was a prima facie case made out against petitioner for willfully attempting to evade payment of taxes in respect of demand raised pursuant to the previous re-assessment orders.

OVERVIEW:-

Here, in this case, the petitioner seeks to challenge the rejection by respondent no. 1 of the declaration filed on 31^st January, 2021 under the DTVSV Act for Assessment Years 2010-11 and 2011-12. The said rejection was pursuant to a clarification issued by respondent no. 2 vide Circular No. 21/2020 dated 4^th December, 2020. The petitioner also seeks to challenge the legality and validity of the clarification issued by respondent no. 2 in its reply to question no. 73 in the said circular.

The petitioner had filed its return of income for Assessment Year 2010-11 on 23^rd October 2010 declaring a total income of Rs. 26,06,385/- and for Assessment Year 2011-12 on 23^rd September, 2011 declaring a total income of Rs. 13,37,173/-. The tax due on the income returned for assessment year 2010-11 was duly paid by petitioner by way of TDS and self-assessment tax and for assessment year 2011-12 by way of TDS, advance tax and self-assessment tax.

The return filed by petitioner for both the assessment years was processed under section 143(1) of the Income Tax Act, 1961. Subsequently, assessments for assessment years 2010-11 and 2011-12 were reopened under section 147 of the act by issuance of notice dated 5^th February, 2015 under section 148 of the act. Reassessment proceedings were concluded and the assessing officer passed an assessment order dated 28^th March, 2016 under section 144 read with section 147 of the act assessing petitioner’s income for assessment year 2010-11 at Rs. 11,69,41,860/- and for assessment year 2011-12 at Rs. 34,88,000/-.

The assessing officer raised a demand of Rs. 6,77,59,232/- and Rs. 7,37,609/- on the additional income determined in the re-assessment proceedings for assessment years 2010-11 and 2011-12 respectively. Notice dated 27^th April, 2016 under section 156 of the Act was issued. The assessment order and the consequent notice dated were impugned by petitioner before the Commissioner of Income Tax (Appeals) which were pending adjudication at the time of filing the petition.

Pending the appeal, petitioner paid 20% of the demand as permissible under office memorandum [F. No. 404/72/93-ITCC] dated 31^st July, 2017. Upon payment, petitioner would cease to be an assessee in default. The appeal was dismissed by CIT(A) and petitioner’s appeal before the ITAT is still pending.

Alongwith the assessment orders dated 28^th March, 2016 for assessment years 2010-11 and 2011-12, the assessing officer also initiated proceedings for imposition of penalty under section 271(1)(c) of the act. In view of the pending appeal, the penalty proceedings were kept in abeyance. In the meantime, DTVSV Act was notified and petitioner decided to take advantage of the provisions of the DTVSV Act and therefore, on 21^st March, 2020 filed declaration for assessment years 2010-11 and 2011-12. Petitioner’s declaration was however, rejected.

ISSUES RAISED:-

1. Whether the rejection of the declarations filed by petitioner under the DTVSV Act is invalid?

2. Whether the provisions of DTVSV Act shall apply to petitioner?

CONTENTIONS RAISED BY PETITIONER:-

1. The petitioners at first contented that, “section 9(a)(ii) of DTVSV Act dis-entitles a person to be eligible under the Act”.

2. Secondly, they argued that, “the bar against applicability of DTVSV Act is when prosecution initiated relates to tax arrear”.

3. They further asserted that, “the purported clarification is ultra vires and contrary to the provisions of DTVSV Act and the Direct Tax Vivad Se Vishwas Rules, 2020, is beyond the powers an dauthority conferred upon respondent no. 2 under section 11 of the DTVSV Act, is arbitrary, and violative of Article 14 of the Constitution of India”.

CONTENTIONS RAISED BY RESPONDENTS:-

1. The respondents contended that, “the petitioner was an ineligible declarant in view of pending prosecution proceedings against petitioner, whereas the subject prosecution is not related to the tax arrears in respect of which declaration was filed”.

2. Secondly, they argued that, “on the date of filing of the declaration, prosecution had already been initiated against petitioner on account of tax arrear and therefore, respondent had rightly rejected the declaration”.

3. They further asserted that, “whether or not, the prosecution relates to tax arrear, the taxpayer is dis-entitled to apply for settlement of pending appeal in relation to the tax arrear under the DTVSV act”.

JUDGMENT ANALYSIS:-

The court by applying the principles of Macrotech Developers Ltd. Vs. Principal Commissioner of Income Tax [ (2021) 126 taxmann.com 1 (Bombay) ] on the facts and circumstances of this case gave the following orders:-

1. The declaration of petitioner filed on 31^st January, 2021 for Assessment Years 2010-11 and 2011-12 would have to be decided by respondent no. 1 in conformity with the provisions of DTVSV Act.

2. Petition is accordingly allowed to the extent indicated above.

3. Petition disposed and there shall be no order as to costs.

CONCLUSION:-

After analyzing its own view in Writ petition No.- 1558 of 2022, the court stated that “this petition has become infructuous” and with this, it disposed of the Writ Petition (L) No.- 5292 of 2022.