2004 (3) TMI 23

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....963-64 to 1990-91. The aforesaid petition faced rejection vide order dated January 24, 1997. The assessee, the late H.H. Krishnaji Rao Puar, filed an application under section 35(1)(b) on September 27, 1997, before the Commissioner, Wealth-tax, seeking rectification of his earlier order on the ground while rejecting the said petition certain facts were not considered. While the matter was pending the assessee moved an application before the Chief Commissioner, Wealth-tax, Bhopal, on July 29, 1998, for issue of a direction to the Commissioner of Wealth-tax for disposal of the application which was pending before the said authority within a period of six months. As no order was passed the petitioner preferred a Writ Petition No. 1900 of 1998. As put forth in the petition during the pendency of the aforesaid petition the respondents enacted the Finance (No. 2) Act, 1998, which came into force and a scheme, namely, the Kar Vivad Samadhan Scheme, 1998, was framed. The objects of the scheme have been mentioned in the petition which basically provides a quick and voluntary settlement of tax dues outstanding as on March 31, 1998, both in respect of direct taxes as well as indirect taxes, ....

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....titioner and levied interest. It is contended that the writ petition was filed on December 14, 1998, prior to the date of declaration but due to procedural impediment which was beyond the control of the petitioner, the writ petition could not be taken up immediately. It has been asseverated that the winter vacation ensued. The plea of prolonged illness of the assessee has been laid emphasis upon, which led to delay in admission of the writ petition. It is the stand of the petitioner that section 95(i)(c) has to be purposively construed and in that backdrop the order dated April 16, 2003, deserves to be set aside. It is averred that if restrictive interpretation is given to the provision it would frustrate the object of the statute and thereby becomes arbitrary inviting the wrath of article 14 of the Constitution of India. A return has been filed on behalf of the respondents contending, inter alia, that the order dated April 15, 2003, rejecting the petitioner's application under the Kar Vivad Samadhan Scheme, 1998, is neither illegal nor unsustainable because the provision contained under sub-clause (c) of clause (i) of section 95 gets attracted as the writ petition was not admitte....

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.... (i) in respect of tax arrear under any direct tax enactment, - (a) in a case where prosecution for concealment has been instituted on or before the date of filing of the declaration under section 88 under any direct tax enactment in respect of any assessment year, to any tax arrear in respect of such assessment year under such direct tax enactment or in respect of a person who has been convicted for concealment on or before the date of filing the declaration; (b) in a case where an order has been passed by the Settlement Commission under sub-section (4) of section 245D of the Income-tax Act or sub-section (4) of section 22D of the Wealth-tax Act, as the case may be, for any assessment year, to any tax arrear in respect of such assessment year under such direct tax enactment; (c) in a case where no appeal or reference or writ petition is admitted and pending before any appellate authority or the High Court or the Supreme Court on the date of filing of declaration or no application for revision is pending before the Commissioner on the date of filing declaration." The submission of Mr. Shrivastava, learned senior counsel, is that section 95(i)(c) of the Scheme should be read do....

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....n the present case it is worth noting here the order passed by the learned single judge of this court has been upheld by the Division Bench in a letters patent appeal, but the present case has a different factual scenario to project. The petitioner, as has been indicated earlier, filed a writ petition before this court for issue of a direction to the authority to deal with an application under section 35(1)(b) which was pending before him for more than six months. The writ petition was presented on December 14, 1998. In the writ petition assail was also to the levy of interest. The petitioner during the pendency of the writ petition filed an application under the scheme. The authorities on April 16, 2003, rejected the claim. It is also highlighted that the original writ petitioner died on January 21, 1999. It is averred that the writ petition was admitted on April 5, 1999, and, therefore, the admission must relate back to the date of presentation. In essence, learned counsel while challenging the constitutional validity of the aforesaid provision has assiduously prayed before this court for reading down the provision. The submission of Mr. Shrivastava, learned senior counsel is th....