TaxTMI 
TaxTMI 
1999 (12) TMI 10
X X X X Extracts X X X X
X X X X Extracts X X X X
....o. 1 rejecting the declaration under the scheme on the ground that there is no outstanding demand as the same has been collected through the adjustments of refunds of the assessment year 1994-95. Photocopies of the order in both the applications have been annexed as annexure-2 to the writ applications. The petitioner of C. W. J. C. No. 331-7 of 1999(R) is engaged in the business of scrap, etc. He is an assessee under the Income-tax Act. He filed a return for the accounting period relevant to the assessment year 1984-85 showing total income of Rs. 1,20,258. The assessing authority of Jamshedpur completed the assessment at a total income of Rs. 3,80,288, The petitioner preferred an appeal before the Commissioner of Income-tax (Appeals), Jamshedpur, which was allowed in part. Thereafter, the petitioner filed a second appeal before the Income-tax Appellate Tribunal, Patna, which was disposed of on April 30, 1998, whereby the Tribunal allowed certain claims of the petitioner but certain additions made by the assessing authority were upheld. On April 30, 1998, the petitioner filed an application before the Appellate Tribunal under section 254(2) of the Act for rectification of the mis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sale foodgrains. Certain taxes were outstanding against him as on March 31, 1998, with regard to the assessment year 1995-96. After the coming into force of the scheme he filed a declaration for the voluntary settlement of the taxes for the aforesaid year. A copy of the said application has been annexed as annexure 1. The said application was rejected on February 25, 1999, by the respondent-Commissioner on the ground that there is no outstanding demand against him as the demand has been collected through adjustment of refunds of the assessment year 1994-95. It is stated on behalf of the petitioner that the adjustment of the amount of refund by the authority was in total breach of provision of section 245 of the Income-tax Act as no prior intimation of adjustment of refund was given and as such the said adjustment cannot be treated as a valid adjustment out of the refunds and on the relevant date in terms of the scheme, there was outstanding demand against the assessee and the rejection of declaration under the scheme was wholly unjustified. The stand of the department on the other hand is that one of the conditions for availing of the benefit of the scheme was that there shou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the system more user-friendly. I, therefore, propose to introduce a new scheme called 'Samadhan'." The Scheme came into force on September 1, 1998, and remained effective till December 31, 1998. According to the provisions of the scheme, if the declaration is in terms of the scheme then the tax payable is in terms of clause 88 of the Scheme. To avail of the benefit of the scheme the following conditions are to be fulfilled : (i) the demand should be raised on or before March 31, 1998 (ii) demand or part of the same should remain outstanding on the date of filing of the declaration under the scheme; (iii) appeal/reference/writ petition or revision should be pending in respect of such demand on the date of filing of declaration under the scheme ; and (iv) the case is not covered by any of the sub-clauses of clause 95 of the scheme. For the purpose of C. W. J. C. No. 3317 of 1999(R) clause 95 is relevant which provides that the provisions of the scheme shall not apply in respect of the matters enumerated therein. Clause 95(i)(c) provides that the provisions of the scheme shall not apply to a case where no appeal or reference or writ petition is admitted and pending b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sal of the same, it appears that the rectification has been sought for only on the ground of non-consideration of certain materials on the record and not on the ground that there was any mistake apparent from the record. The said petition was also withdrawn subsequently by making a false statement before the authority that the declaration has been accepted, which, as stated above, has already been rejected. In my view, an application under section 254(2) cannot be treated as an appeal and as no appeal was pending on the date when the application was filed for taking benefit of the scheme. Clause 95(i)(c) is attracted and as such the petitioner was not entitled to the benefit of the scheme. The respondents have rightly rejected the declaration under the scheme. In the case of C. W. J. C. No. 3318 of 1999(R), the question to be considered is as to whether there was any outstanding demand on the date of filing of the declaration under the scheme or not. There was a tax liability against the petitioner for the relevant assessment year. Certain amount were refundable to the petitioner for the assessment year 1994-95. The authorities adjusted the aforesaid amount on August 26, 1....