Bombay High Court
Arihant Developers vs Principal Commissoner Of Income Tax - 5 ... on 13 August, 2024
Author: G.S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-AS:32996-DB
J-902-ASWP-575-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 575 OF 2023
Arihant Developers ...Petitioner
Versus
Principal Commissioner of Income Tax-5 Akurdi,
Pune & Ors ...Respondents
Mr. Sanket S. Bora, a/w Vidhi K. Punmiya, Amiya Rajan Das &
Unnati T., i/b SPCM Legal, Advocates for the Petitioner.
Mr. Suresh Kumar, Advocate for Respondents.
CORAM : G. S. KULKARNI &
SOMASEKHAR SUNDARESAN, JJ.
DATE : AUGUST 13, 2024
ORAL JUDGMENT (PER : G.S. KULKARNI, J.)
1. Rule. Rule is made returnable forthwith. By consent of the
parties the Writ Petition is taken up for final disposal.
2. This petition under Article 226 of the Constitution of India is
filed praying for the following reliefs:-
A. Issue a Writ of Mandamus or Writ in the nature of Mandamus
or any other appropriate Writ, order or direction, directing
Respondent No. 1 to act in furtherance of the declaration made by
the Petitioner under IDS and issue the appropriate Form 4
Digitally
signed by
Certificate of Declaration;
ASHWINI
ASHWINI JANARDAN
JANARDAN VALLAKATI
VALLAKATI Date:
2024.08.17
17:46:00
+0530
August 13, 2024
Ashwini Vallakati
J-902-ASWP-575-2023.doc
B. Issue a Writ of Certiorari or a Writ in the nature of Certiorari
or any other appropriate Writ, order or direction under Article 226
of the Constitution of India, quashing the Impugned assessment
order dated 224 March, 2022 passed w/s 147 r-w.s. 144 and 144B
ofthe ITA, the demand notice u/s 156 and the Penalty notice w/s 274
r.w.s 271 AA(1) both dated 22™ March, 2022 along with the issue
letter dated 374 August, 2022 as being .wholly without jurisdiction
illegal and arbitrary;
3. As urged by the learned Counsel for the Petitioner, the entire
basis for the Assessing Officer to issue the impugned notice and to pass
the assessment order dated 22 March, 2022 under Section 147 read with
Section 144 and 144B of the Income-tax Act, 1961("the Act") and also to
issue the consequential notice under Section 156 and the penalty notice
under Section 274 read with 271AA(1) dated 22 March, 2022 was that
the Petitioner had although made a declaration/ in form-1 under
Income Declaration Scheme, 2016 (IDS) brought into effect from 1 June
2016, the Petitioner had not deposited the tax amounts which would
liable to be deposited. This is clear from the annexure to the notice
under Section 142(1) dated 27 December, 2021 wherein paragraph 1
thereof was recorded as under:-
"1. It has been noted that your assessee firm, has filed application in
IDS,2016, for declaration of undisclosed income of Rs.3,30,00,000/-.
As per the provision of section 184 & 185 has had to pay
Rs.1,48,50,000/- on account of tax, surcharge and penalty. However, it
is noticed that you have not paid the same within the time allowed as
per the provision of section 187. Please give explanation why the said
August 13, 2024
Ashwini Vallakati
J-902-ASWP-575-2023.doc
amount may not be added to your taxable income for the A.Y. in
reference and taxed accordingly."
4. Learned Counsel for the Petitioner has submitted that the
entire basis for the Assessing Officer to proceed on such assumption
that the Petitioner had not deposited the tax was incorrect, inasmuch as
the Petitioner had deposited the tax amounts on 30 November, 2016, 30
March, 2017 and 30 September, 2017, the challans of which are also
annexed to this petition at Exhibit B1 and B2. It is therefore submitted
that there was no question of any mismatch and/or such payments not
being taken into consideration while issuing the impugned notice as also
passing of the reassessment order under Section 147 read with Section
144 and 144B of the Act as impugned.
5. Mr. Suresh Kumar, learned Counsel for the Respondents has
tendered a reply affidavit of Mr. Santosh Kumar, Income Tax Officer
Ward-9(1), Pune. In para 2(x), it is stated that as per the details
available with the Respondent and as per the details of challans
furnished by the assessee, the seven payments were made by the
Petitioner totaling to an amount Rs.1,48,50,000/- towards the liability
against the declaration made under the IDS.
August 13, 2024
Ashwini Vallakati
J-902-ASWP-575-2023.doc
6. In this view of the matter, the basis on which, the Assessing
Officer had proceeded that the Petitioner has not complied with the
terms and conditions of the IDS and had not deposited the tax certainly
was erroneous.
7. Learned Counsel for the Petitioner submits that in view of
such deposit, it was incumbent on the Respondents to issue a certificate
to the Petitioner in form-4, which has also not been issued so far.
8. Having heard learned Counsel for the parties and having
perused the record as also the reply affidavit, we are of the opinion that
the contention as urged on behalf of the Respondents in the reply
affidavit, that the Petitioner in fact complied with all the requirements
under the IDS as also appropriate amount of tax was deposited is
sufficient for this Court to accept the case of the Petitioner. Thus, the
impugned assessment order cannot be held to be legal. It would be
accordingly required to be quashed and set aside on the Respondents
own showing that the Petitioner had deposited all the amounts under
the IDS. The Petitioner accordingly had become entitled to the benefit
under such scheme. We accordingly allow this petition in terms of
prayer clause (A) and (B). The Respondents are also directed to issue an
August 13, 2024
Ashwini Vallakati
J-902-ASWP-575-2023.doc
appropriate certificate of the deposit of tax under IDS to the Petitioner
within a period of four weeks from the date of a copy of this order being
presented before the competent officer.
9. At this stage, learned Counsel for the Petitioner submits that
the Petitioner had already filed an appeal before the Commissioner of
Income-tax Appeal ("CIT-A"). The said appeal is rendered infructuous
in view of the present order and stands disposed of. This order
accordingly be informed by the learned Counsel for the parties to the
CIT(A).
10. Rule is accordingly made absolute in the aforesaid terms. No
costs.
[ SOMASEKHAR SUNDARESAN, J.] [G. S. KULKARNI, J.]
August 13, 2024
Ashwini Vallakati
