TaxTMI 
TaxTMI 
2024 (3) TMI 1013
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....g the respondent to issue Form 3 and accept the Form-4 filed under Direct Tax Vivad Se Vishwas Act, 2020* setting out the refundable amount due to the petitioner as follows:- Rs. 3,25,75,388/- Rs. 4,17,77,082/- Rs. 18,49,55,219/- Rs. 6,14,06,367/- in terms of the Rectification order dated 29.01.2021 issued by the 1st respondent. *DTVSV Act, 2020 for short. 2. I have considered the arguments advanced by the learned counsel for the petitioner as well as the learned counsel for the respondent and perused the materials available on record. 3. The petitioner opted to settle the disputes under Direct Tax Vivad Se Vishwas Act, 2020(No.3 of 2020) [hereinafter referred to as DTVSV Act, 2020] by filing declarations in Form-1 on 31.01.2021 for ten Assessment Years starting from Assessment Year 1999 - 2000 upto Assessment Year 2008 - 2009 before the Designated Authority in terms of Section 4(1) of the DTVSV Act, 2020 r/w Rule 3 of the Direct Tax Vivad Se Vishwas Rules 2020 (hereinafter referred to as the DTVSV Rules, 2020). 4. The Parliament had enacted The DTVSV Act, 2020 to give a reprieve to those income tax assesse's who had "tax arrears" of "disputed tax" ....
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....f the application filed under DTVSV Act, 2020 on 31.01.2021. 11. For the Assessment Year 1999 - 2000 and Assessment Year 2000 - 2001, the tax payable by the petitioner were adjusted out of refunds due to the petitioner for the Assessment Year 2004-2005 & Assessment Year 2005-2006. For the following Assessment Years, penalty were also imposed on the petitioner which were said to have been appealed before CIT(A) in the following Appeals :- Assessment Year Appeal Number Disputed Penalty (Rs.) 1999-2000 I.T.A.No.1949/ CHNY-2006 3,35,82,870/- 2000-2001 I.T.A.No.1950/ CHNY-2006 7,83,93,502/- 2001-2002 I.T.A.No.48/2005-06 2,05,29,631/- 12. For the rest of the Assessment Years, appeals were said to be pending before the Income Tax Appellate Tribunal ("ITAT"). They would have been withdrawn as the petitioner availed the benefit of DTVSV Act, 2020. 13. While these appeals were still pending before the Hon'ble Supreme Court for the Assessment Year 1999-2000 and Assessment Year 2000-2001, the Assistant Director of Income Tax, International Taxation-I passed three separate orders all dated 25.07.2012 under Section 254 of the IT Act, 1961 for the ....
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....ent Year 2005-2006. It is further stand of the petitioner that the petitioner was also entitled to further interest under Section 244-A of the IT Act, 1961 on belated payment/adjustments made on 29.01.2021. 18. For reference, Section 245 and Section 244 A of the IT Act, 1961 are reproduced below:- Section 245 of the IT Act, 1961 Section 244-A of the IT Act, 1961 Set off of refunds against tax remaining payable Interest on Refunds:- Where under any of the provisions of this Act, a refund is found to be due to any person, the Assessing Officer, Deputy Commissioner (Appeals), Commissioner (Appeals) or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, as the case may be, may, in lieu of payment of the refund, set off the amount to be refunded or any part of that amount, against the sum, if any, remaining payable under this Act by the person to whom the refund is due, after giving an intimation in writing to such person of the action proposed to be taken under this Section". (1)Where refund of any amount becomes due to the assessee under this Act he shall, subject to the provisions of this sections, be entitled to receive,....
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....r section 254 or section 260. or section 262 or section 263 or section 264, wholly or partly, otherwise than by making a fresh assessment or reassessment, the assessee shall be entitled to receive, in addition to the interest payable under sub-section (1), an additional interest on such amount of refund calculated at the rate of three per cent per annum, for the period beginning from the date following the date of expiry of the time allowed under subsection (5) of section 153 to the date on which the refund is granted:] [Provided that where proceedings for assessment or reassessment are pending in respect of an assessee, in computing the period for determining the additional interest payable to such assessee under this sub-section, the period beginning from the date on which such refund is withheld by the Assessing Officer in accordance with and subject to provisions of subsection (2) of section 245 and ending with the date on which such assessment or reassessment is made, shall be excluded] (1B) Where refund of any amount becomes due to the deductor in respect of any amount paid to the credit of the Central Government under Chapter XVII-B, such deductor shall be entitled to ....
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....7:- Any amount paid in pursuance of a declaration made under Section 4 shall not be refundable under any circumstances. Explanation:- For the removal of doubts, it is hereby clarified that where the declarant had, before filing the declaration under Sub-Section (1) of Section 4, paid any amount under the Income-tax Act in respect of his tax arrear which exceeds the amount payable under Section 3, he shall be entitled to a refund of such excess amount, but shall not be entitled to interest on such excess amount under Section 244A of the Income-tax Act." 21. Tax payable and refundable as per the petitioner in Form-1 and the Department in Form-3 under the DTVSV Act, 2020 are as under:- Assessment Year As per the petitioner As per Income Tax Authority Tax arrears (Rs.) Amount Refundable (Rs.) Tax arrear (Rs.) Amount payable under DTVSV on or before 30.04.2021 Amount payable under DTVSV after 30.04.2021 Amount Refundable (Rs.) 1999-2000 3,35,82,870 3,25,75,389 1,91,27,094 1,77,97,806 1,95,77,587 1,88,83,989 2000-2001 7,83,93,502 6,14,06,367 5,13,56,716 5,13,56,716 5,64,92,387 4,41,25,531 2001-2....
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....arties, save and except the dispute over interest, which will remain res integra in these Writs. 6. Accordingly, it is prayed that the above be passed as an interim direction in the above Writ Petitions." 25. The payments made are irrelevant for the relief sought for in these writ petitions. 26. The petitioner thus wants of the amount of refunds ordered in Form-3 for Assessment Year 1999-2000 to 2002-2003 to be re-calculated along with interest under Section 244-A of IT Act, 1961 quantified in order dated 29.01.2021 by the Deputy Commissioner of Income Tax, International Taxation under Section 154 of the IT Act, 1961 which was not recognized in Form-3 issued for the Assessment Years Assessment Years 1999-2000 to 2002-2003 for being adjusted towards the tax liability of the petitioner for the Assessment Years 2003-2004 to 2006- 2007 under DTVSV Act, 2020. 27. The learned Senior Counsel for the petitioner has drawn attention to decisions of this Court in the following cases:- i. W.P.No.16022, etc., batch of 2021, dated 13.04.2022; ii. W.P.No.15762 of 2021, dated 29.11.2021. 28. The learned Senior Counsel for the petitioner has further drawn atte....
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....er XIX of the Income Tax Act, there is no limitation prescribed for granting refund of the amount paid in excess as tax. Therefore, I do not find any merits in the submissions made by the learned Senior Standing Counsel appearing on behalf of the respondents. Therefore, these Writ Petitions deserves to be allowed." 30. The amount payable is specified in the Table to Section 3 of the DTVSV Act, 2020. The amounts that are payable on or before 31st March, 2020 and after the 1st March, 2020 but before the last date under the Act are specified in Column 3 to 4 to the Table to Section 3 of the DTVSV Act, 2020. Section 3(1) of the DTVSV Act, 2020, reads as under:- 3. Amount Payable by declarant - Subject to the provisions of this Act, where a declarant files under the provisions of this Act on or before the last date, a declaration to the designated authority in accordance with the provisions of section 4 in respect of tax arrear, then, notwithstanding anything 43 of 1961. Amount payable by declarant 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:- 1 2 3 4 ....
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....2(j) Direct Tax Vivad Se Vishwas Act, 2020 Section 2(o) Direct Tax Vivad Se Vishwas Act, 2020 "disputed tax", in relation to an Assessment Year or financial year, as the case may be, means the income-tax, including surcharge and cess (hereafter in this clause referred to as the amount of tax) payable by the appellant under the provisions of the Income-tax Act, 1961, as computed hereunder:- A) in a case where any appeal, writ petition or special leave petition is pending before the appellate forum as on the specified date, the amount of tax that is payable by the appellant if such appeal or writ petition or special leave petition was to be decided against him; B) in a case where an order in an appeal or in writ petition has been passed by the appellate forum on or before the specified date, and the time for filing appeal or special leave petition against such order has not expired as on that date, the amount of tax payable by the appellant after giving effect to the order so passed; C) in a case where the order has been passed by the Assessing Officer on or before the specified date, and the time for filing appeal against such order has not expired a....
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....e the last date. 33. Since the petitioner had pending appeals both before the Hon'ble Supreme Court and Income Tax Appellate Tribunal for the these assessment years on the issue relating the taxability of the transaction, the amount payable by the petitioner is the amount of tax due sans the penalty and interest in terms of Sl. No.(a) to Table to Section 3 of DTVSV Act, 2020. 34. Thus, the amount quantified as payable under in Form -1 by the petitioner was not correct. The amount of tax payable as quantified by the department in Form-3 is correct as detailed below:- S.No. W.P. Assessment Year Amount payable by the petitioner 1 10389/2021 1999- 2000 Rs. 1,91,27,094/- 2 10393/2021 2000-2001 Rs. 5,13,56,716/- 3 10600/2021 2001-2002 Rs. 15,50,90,573/- 4 10395/2021 2002-2003 Rs. 5,61,12,304/- Total Rs. 28,16,86687/- 35. Under Section 7 of the DTVSV Act, 2020, any amount paid in excess in pursuance of the declaration is not refundable. However, where the declarant had, before filing the declaration under Sub-Section (1) of Section 4, paid any amount under their Act, 1961 in respect of his tax arrears which exceeds....
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....sessment Year 2005- 2006. 41. Excess amounts after adjustments of the liability ought to have been refunded together with interest under Section 244-A of the IT Act, 1961 for the Assessment Year 2004-2005 and Assessment Year 2005- 2006, provided no applications were filed for Assessment Year 2004-2005 and Assessment Year 2005-2006 under Sl.No.(a) to Section 3 of the DTVSV Act, 2020. 42. For the Assessment Year 2001-2002 and for the Assessment Year 2002-2003, the petitioner was entitled to interest under Section 244-A of the IT Act, 1961, if no declaration was filed under DTVSV Act, 2020. Interest under Section 244-A of the IT Act, 1961 will not be available to the petitioner in view of explanation to Section 7 of the DTVSV Act, 2020. It makes it clear, that a declarant shall not be entitled to interest under Section 244-A of IT Act, 1961 on such excess amounts. 43. Therefore, the petitioner is not entitled to the relief as prayed for in full. The amounts that have been ordered to be refunded under Section 154 Order dated 29.01.2021 for the Assessment Year 1999-2000 and Assessment Year 2000-2001, are refundable separately together with interest under Section 244-A of the IT....