The Commissioner Of Income Tax vs Smt.Jayanthilal Jain Sowalchand
2021 Latest Caselaw 9005 Mad

                                                                                TCA.No.186 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.186 of 2020


                     The Commissioner of Income Tax,
                     Chennai.                                                     ...Appellant
                                                             Vs

                     Smt.Jayanthilal Jain Sowalchand                              ...Respondent

APPEAL under Section 260A of the Income Tax Act, 1961 against

the order dated 20.11.2019 passed by the Income Tax Appellate

Tribunal, 'A' Bench, Chennai made in I.T.A.No.353/Chny/2019 for the

assessment year 2014-15.

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

https://www.mhc.tn.gov.in/judis/ TCA.No.186 of 2020

dated 20.11.2019 made in I.T.A.No.353/Chny/2019 on the file of the

Income Tax Appellate Tribunal, Chennai 'A' Bench ('the Tribunal' for

brevity) for the assessment year 2014-15.

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 Kanhaiyalal and Sons (HUF) in ITA No.1849/Chny/2014, Sunil Kumar Lalwani and Aashesh Kumar Lalwani 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 the SEBI?

https://www.mhc.tn.gov.in/judis/ TCA.No.186 of 2020

And 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 20.1.2021 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

https://www.mhc.tn.gov.in/judis/ TCA.No.186 of 2020

T.S.SIVAGNANAM,J AND R.N.MANJULA,J

RS assessee is given liberty to restore this appeal in the event the

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, 'A' Bench, Chennai.

TCA.No.186 of 2020

https://www.mhc.tn.gov.in/judis/