TaxTMI 
TaxTMI 
2026 (1) TMI 1486
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....e Respondents, waives service. 4. Heard finally with the consent of the Learned Counsels appearing for the parties. 5. By the present Petition under Article 226 of the Constitution of India, the Petitioner has challenged the order passed by the 1st Respondent. By an order dated 17.03.2021 (the impugned order), the 1st Respondent rejected the Petitioner's application under the "Vivad Se Vishwas Scheme" (the Scheme). The Petitioner challenges the impugned order on various grounds, including that it was passed without affording an opportunity of hearing, is arbitrary and perverse, and is contrary to the very object of the Scheme. It is further submitted that there are no reasons assigned to the impugned order, and the application of the ....
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....tioner did not file any Appeal against the Assessment Order dated 30.12.2016 passed under Section 143(3) read with Section 147 of the Act. 7. In a nutshell, the objections of the Revenue are that there is no appeal preferred by the Petitioner against the Assessment Order passed under Section 143(3) of the Act, and therefore, she is not entitled to get the benefit of the Scheme. Further, it is submitted that there has been a delay in filing the present Petition and that the Scheme has now lapsed, and therefore, no relief ought to be granted to the Petitioner. 8. The challenge of the Petitioner and the objections of the Revenue will have to be considered in the factual background, which are as follows:- i) The Petitioner filed ....
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.... Appeal filed by the Petitioner's husband, the Scheme was introduced. Therefore, the Petitioner's husband applied for availing the benefit of the Scheme by filing Form 1 and Form 2. These forms were filed by the Petitioner's husband on 17.03.2021. iii) The Appeal filed by the Petitioner's husband on 10.09.2015 was in respect of the entire additions made in the return of income of the Petitioner's husband and the Petitioner. Therefore, the Petitioner did not prefer to file a separate appeal against the order passed under Section 143(3) read with Section 147 of the Act. Consequently, the Petitioner only filed an Appeal against the penalty order which was passed under Section 271(1)(C) read with Section 274 of the Act. iv) Th....
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.... 5A of the Act. In fact, Petitioner's husband was assessed under the same Assessment Order and on the same disputed income, which is governed by the provisions of Section 5A of the Act. Admittedly, the Petitioner's husband has been granted the benefit of the Scheme, and the Application of the Petitioner is rejected by the impugned order. 11. Section 5A of the Act creates a statutory fiction. It treats income as a single community income. The income belongs to the material community, and the assessment is mechanically apportioned. Once the assessment itself is challenged and settled for one spouse, the dispute cannot survive independently for the other. The department cannot split a single community income dispute into two for settlement ....
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.... Petitioner challenging the Penalty Order is pending. Therefore, the Petitioner meets the first requirement of a pending Appeal. There is a pending dispute pertaining to the penalty in respect of the Petitioner which undoubtedly bring her within the ambit of the scheme. 15. Therefore, the impugned order is factually wrong and contrary to the provisions of the scheme itself. Further, when the benefit of the scheme was granted to the Petitioner's husband, the department could not have denied the same to the Petitioner when, admittedly, the provisions of section 5A of the Act are equally applicable to both. We agree with the submission of Mr. Karpe, the Learned Counsel for the Petitioner, that when the provisions of Section 5A are admittedl....