TaxTMI 
TaxTMI 
2017 (10) TMI 181
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....sing out of Special Leave Petition (Civil) Nos.10485/2017 and 9633/2017] are largely similar. 3. The challenge by the Revenue is to an order of the High Court of Delhi by which the High Court has allowed the writ petitions filed by the respondents - Assessees challenging the orders issued by the Designated Authority i.e. Additional Commissioner of Income Tax rejecting the applications filed by the Respondent writ petitioners under the Delhi Tax Compliance Achievement Scheme, 2013 (hereinafter referred to as "the Amnesty Scheme"), details of which are noted below. 4. Under Section 107 of the Delhi Value Added Tax Act, 2004 (hereinafter referred to as "the DVAT Act"), the Government of National Capital Territory of Delhi ("GNCTD" for short) is empowered to notify amnesty scheme(s) covering payment of tax, interest, penalty or any other dues under the DVAT Act relating to any period ending before 1st April, 2013. 5. In exercise of powers under Section 107 of the DVAT Act, an Amnesty Scheme was notified by the GNCDT on 20th September, 2013. Clause 2(c) of the Amnesty Scheme which defines the 'designated authority'; clause 4 which delineates the procedure for making dec....
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....of furnishing of declaration under this Scheme. Such a dealer shall be eligible for immunity under clause 5 ofteh Scheme for late payment of such tax and non-filing of return under the Act. (6) The declarant shall furnish to the designated authority, details of payment made from time to time under this Scheme along with a copy of acknowledgement issued to him under sub-clause (2). (7) On furnishing the details of full payment of declared tax dues payable under sub-clause (4), the designated authority shall issue an acknowledgement of discharge of such dues within fifteen days to the declarant in Form DSC-3 appended to this notification. (8) A dealer who has not taken registration shall obtain registration prior to filing of declaration as referred in sub-clause (1) of clause 4. Likewise, a person who is responsible for making deduction of tax under section 36A of the Act, shall obtain a Tax Deduction Account Number (TAN), if not already obtained. *** *** &n....
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....once the Scheme is opted for. Further, all matters pending in the High Court and Supreme Court shall be withdrawn by the declarant and he will need to submit the application filed for withdrawl with the declaration. for the case to be withdrawn before the court. (4) No proceeding shall be instituted within 48 hours of securing a registration, provided, the registrant declares his intent of opting under the Scheme at the time of applying for TIN/ TAN. (5) The information gathered vide a declaration under the scheme shall be kept confidential and shall not be used except under the Scheme and the same shall not be shared with any other person/ government department/agency. *** *** *** 8. Failure to make true declaration.- (1) Notwithstanding anything contained in clause 5 of the Scheme, where the Commissioner has, for a per....
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....sessees were allowed and the impugned consequential proceedings were interfered with. The High Court also took the view that as under clause 8(3) of the Amnesty Scheme show cause notice has to be issued within one year of the date of declaration which in the present case was made on 18th February, 2014 and 28th February, 2014, respectively, issuance of any further/fresh show cause notice was time barred. Aggrieved the Revenue is in appeal before this Court. 7. Shri Maninder Singh, learned Additional Solicitor General appearing for the Revenue has vehemently contended that the Government Order dated 30th April, 2014 contains a clear delegation of the power under clause 8 of the Amnesty Scheme by the Commissioner to the Designated Authority. The power of disposal of the application received under the Scheme, according to the learned ASG, must necessarily include the power to finalize the matter after issuing the show cause notice under clause 8 in an appropriate case. Learned ASG has further urged that under clause 4 the declarations are required to be considered by the Designated Authority i.e. the Additional Commissioner. It is natural that the power to reopen the cases conclude....
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....esty Scheme. Related, is whether, in the present case, there has been any delegation of the said power which is vested in the Commissioner under the aforesaid clause 8. 11. The second issue arising would depend on an answer to the first, namely, if it is to be held that the Designated Authority is not empowered to act under clause 8, whether a fresh notice under the aforesaid clause of the scheme can still be issued by the competent authority i.e. the Commissioner or the delegatee of the Commissioner. 12. What category of officers would come within the expression "designated authority" is contemplated by the definition contained in clause 2 (c) of the Amnesty Scheme. An Officer not below the rank of Joint Commissioner as may be notified by the Commissioner would be a designated authority under the Scheme. 13. Clause 4 of the Scheme requires a declaration of the tax due to be made to the designated authority and, thereafter, following the procedure prescribed by the various sub-clauses of clause 4, the Designated Authority is empowered to issue the acknowledgment of discharge of dues under clause 4 (7) of the Scheme. 14. Under clause 8 of the aforesaid scheme, the Commis....
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....of the Additional Commissioner to issue the notice in question. The adjudication order, therefore, did not deal with the said issue. It is only after the period of one year from the date of declaration was over that the writ petition was filed wherein the question of jurisdiction of the Additional Commissioner was raised for the first time. It is in these facts that the High Court took the view that as the period of limitation prescribed by Clause 8(3) was over, fresh proceedings stood barred by time. 17. While it is correct that the failure to raise the issue of jurisdiction by the assessee will not necessarily clothe the Additional Commissioner with the jurisdiction if the same is not contemplated by law, there are certain aspects of the case which need to be considered. Had the assessee raised the question of jurisdiction in its reply or in the course of the adjudication proceedings there would have been still time for the Commissioner to cure the defect and issue a valid notice. Cases under Amnesty Scheme would fall outside the arena of ordinary and routine matters and, therefore, it is possible to attribute a genuine mistake on the part of the Additional Commissioner in inv....
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....nfair advantage gained by a party invoking the jurisdiction of the court, by the mere circumstance that it has initiated a proceeding in the court, must be neutralised. The simple fact of the institution of litigation by itself should not be permitted to confer an advantage on the party responsible for it. The present case goes further. The appellant would not have enjoyed the advantage of the bar of limitation if. notwithstanding his immediate grievance against the notice under Section 142(1) of the Income Tax Act, he had permitted the assessment proceeding to go on after registering his protest before the Income Tax Officer, and allowed an assessment order to be made in the normal course. In an application under Section 146 against the assessment order, it would have been open to him to urge that the notice was unreasonable and invalid and he was prevented by sufficient cause from complying with it and therefore the assessment order should be cancelled. In that event, the fresh assessment made under Section 146 would not be fettered by the bar of limitation. Section 153(3)(i) removes the bar. But the appellant preferred the constitutional jurisdiction of the High Court under A....
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....eal with it again irrespective of the merits of the case. The point was considered by the Calcutta High Court in Cachar Plywood Ltd. v. ITO (1978) 114 ITR 379 (Cal) and the High Court, after considering the provisions of Section 153 of the Income Tax Act, considered it appropriate. while deposing of the writ petition, to issue a direction to the Income Tax Officer to complete the assessment which, but for the direction of the High Court, would have been barred by limitation." 19. Having considered the matter and the manner in which this Court has approached the issue arising in Grindlays Bank Ltd. (supra) we are of the view that Clause 8(3) of the Amnesty Scheme will have no application to the present case where the initial show cause notice was issued within time and its legitimacy was not contested by the respondent-Assessee. Had such legitimacy been questioned at the stage of reply or even in the course of the adjudication proceedings, there would still have been room/ time for the revenue to correct the error that had occurred. A rectified Notice could even have been issued after the order of adjudication was passed on 11th February, 2015. The close proximity of tim....