TaxTMI 
TaxTMI 
2017 (10) TMI 181
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.....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 declaration and payment of tax dues; clause 5 which dea....
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....se 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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....iled 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 for the case to be withdrawn before the court.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 period beginning from 1st April, 2009, reasons to believe that the declaration was false in material particulars, he may, for reasons to be recorded in writing, serve notice on the declarant in respect....
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....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 concluded on mistaken/suppressed facts must be understood to have been available to the Designated Authority at all times. 8. The above contentions are contested by Shri S. Ganesh, learned Senior Counsel appearing for the respondents - Assesse....
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....y, 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 Commissioner is vested with the power, to be exercised for reasons recorded in writing, to issue notice to the assessee requiring him to show cause as to why he should not pay the tax/ dues unpaid or short paid as per the provisions of the scheme. The power ....
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....tion 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 invoking jurisdiction under Clause 8 of the Amnesty Scheme. The question that looms large before the Court is that whether in such a situation the assessee should be allowed to raise the question of limitation and defeat the claim of the revenue to proceed afresh i....
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....ty 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 Article 226. If no order was made by the High Court directing a fresh assessment, he could contend as is the contention now before us, that a fresh assessment proceeding is barred by limitation. That is an advantage which the appellant seeks to derive by the mere circumstance of his fili....