Madras High Court
The Commissioner Of Income Tax vs Late Shri Sanjay Agarwal Rep.By on 1 April, 2021
TCA.No.183 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.4.2021
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HONOURABLE MS.JUSTICE R.N.MANJULA
Tax Case Appeal No.183 of 2020
The Commissioner of Income Tax,
Chennai. ...Appellant
Vs
Late Shri Sanjay Agarwal rep.by
Bapita Agarwal ...Respondent
APPEAL under Section 260A of the Income Tax Act, 1961 against
the order dated 18.11.2019 passed by the Income Tax Appellate
Tribunal, 'B' Bench, Chennai made in I.T.A.No.1322/Chny/2019 for the
assessment year 2013-14.
For Appellant: Mrs.R.Hemalatha, SSC
For Respondent : Mr.A.S.Sriraman
Judgment was delivered by T.S.SIVAGNANAM,J
This appeal has been filed by the Revenue under Section 260A of
the Income Tax Act, 1961 ('the Act' for brevity) challenging the order
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TCA.No.183 of 2020
dated 18.11.2019 made in I.T.A.No.1322/Chny/2019 on the file of the
Income Tax Appellate Tribunal, Chennai 'B' Bench ('the Tribunal' for
brevity) for the assessment year 2013-14.
2. The appeal was admitted on 23.7.2020 on the following
substantial questions of law :
““i. Whether, on the facts and in the
circumstances of the case, the Tribunal was
right in setting aside the order passed by the
Assessing Officer for re-examination, especially
when the Assessing Officer had duly examined
the matter in extenso while passing the
assessment order ?
ii. Whether on the facts and in the
circumstances of the case, the Tribunal was
right in remitting the issue back to the file of
the Assessing Officer by quoting the decision in
the case of Sunil Kumar Lalwani and that
Heerachand Kanunga wherein the onus has
been shifted to the revenue with a direction
that the Assessing Officer is to bring on record
the role of the assessee in promoting the
company and the relation of the assessee if
any with that of the promoters and role of
inflating of prices etc which exercise had
already been done by the AO? and
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TCA.No.183 of 2020
iii. Is not the finding of the Tribunal
perverse especially when the decision of the
Tribunal is contrary to the time tested principle
that the person who asserts a fact has to
discharge the initial burden cast upon him to
show that the said facts are true and only
thereafter the burden would shift to the
department?”
3. We have heard Mrs.R.Hemalatha, learned Senior Standing
Counsel appearing for the appellant/Revenue and Mr.A.S.Sriraman,
learned counsel appearing for the respondent/assessee.
4. The learned counsel for the assessee submits that the
assessee already filed the declaration/undertaking under the Vivad Se
Vishwas Scheme and orders were passed on 24.3.2021 in Form No.3.
5. It is not out of place to make a mention that an
identical issue has been considered by a Division Bench of this
Court, to which, one of us (TSSJ) was a party, in the decision in
the case of CIT Vs. Manish D.Jain [HUF] [reported in (2020)
122 Taxmann.com 180] and the issue has been answered in
favour of the Revenue.
6. However, in the light of the subsequent development that the
respondent/assessee opted to avail the benefit of the said scheme, the
assessee is given liberty to restore this appeal in the event the
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TCA.No.183 of 2020
T.S.SIVAGNANAM,J
AND
R.N.MANJULA,J
RS
ultimate decision taken on the declaration filed by the assessee under
Section 4 of the said Act is not in favour of the assessee. If such a
prayer is made, the Registry shall entertain the prayer without insisting
upon any application to be filed for condonation of delay in restoration
of the appeal and on such request made by the assessee by filing a
miscellaneous petition for restoration, the Registry shall place such
petition before the appropriate Division Bench for orders.
7. The tax case appeal stands disposed of with the
aforementioned liberty. No costs.
01.4.2021
To
The Income Tax Appellate Tribunal, 'B' Bench, Chennai.
TCA.No.183 of 2020
https://www.mhc.tn.gov.in/judis/
