Madras High Court

Sharad Kumar vs The Principal Commissioner Of Income ... on 4 September, 2024

Author: C.Saravanan

Bench: C.Saravanan

                                                                                W.P.No.3344 of 2021




                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 04.09.2024

                                                      CORAM

                                  THE HONOURABLE MR.JUSTICE C.SARAVANAN

                                                  W.P.No.3344 of 2021
                                                         and
                                                  W.M.P.No.3808 of 2021


                     Sharad Kumar                                             ... Petitioner


                                                        Vs.

                     1.The Principal Commissioner of Income Tax,
                       No.121, M.G.Road,
                       Nungambakkam,
                       Chennai – 600 034.

                     2.The Income Tax Officer,
                       Corporate Ward 3(1),
                       No.121, M.G.Road,
                       Nungambakkam, Chennai – 600 034.                  ... Respondents


                     Prayer: Writ Petition filed under Article 226 of the Constitution of India,
                     for issuance of a Writ of Mandamus, to direct the respondent to accept the
                     petitioner's declaration in Form – 1 and Form – 2 under the Direct Tax
                     Vivad Se Vishwas Act, 2020 and the Direct Tax Vivad Se Vishwas
                     Rules, 2020 respectively.

https://www.mhc.tn.gov.in/judis
                     1/8
                                                                                       W.P.No.3344 of 2021




                                        For Petitioner     : Mr.Suhrith Parthasarathy


                                        For Respondents    : Mrs.S.Premalatha
                                                             Junior Standing Counsel


                                                             ORDER

In this writ petition, the petitioner has prayed for a mandamus to

direct the respondents to accept the declarations filed by the petitioner on

24.12.2020 in Form – 1 and Form – 2 under the Direct Tax Vivad Se

Vishwas Act, 2020 and consequently a direction for issuance of

Form – 3 as per Section 5(1) of the aforesaid Act read with Rule 4 of the

Direct Tax Vivad Se Vishwas Act, 2020.

2. It is the specific case of the petitioner that although the

petitioner was an accused in FIR bearing Number RC-DAI-2009-A-0045

dated 21.10.2009 by CBI, ACB, New Delhi in ECIR No.31/DZ/2010

dated 09.03.2010 by the Enforcement Directorate (ED) under the

provisions of the Prevention of Money Laundering Act, 2002. The

petitioner was acquitted in Complaint Case No.01/14, by the Special

Judge, CBI (04)/PMLA (2G Spectrum Cases). It is the further case of the

petitioner is that the declarations filed by the petitioner under the https://www.mhc.tn.gov.in/judis

provisions of the aforesaid Act and the Rules made thereunder cannot be

rejected, merely because, the Department has preferred an appeal against

the order of acquittal dated 21.12.2017.

3. On the other hand, the learned Junior Standing Counsel for the

respondents would draw attention to Para 5 of the counter affidavit. He

would submit that Criminal LP.Nos.184 and 185 of 2018 are pending

before the Delhi High Court. Hence, the petitioner's case comes within

the purview of Section 9(c) of the Direct Tax Vivad Se Vishwas Act,

2020 and therefore the petitioner was not entitled for settling the dispute

under the provisions of the aforesaid Act.

4. It is further submitted that the respondents have acted within the

scope of the provisions to reject the declarations filed by the petitioner in

Form – 1 and Form – 2 on 24.12.2020 and there is nothing arbitrary or

unreasonable in the same. Hence, there is no question of violation of

principles of fundamental rights of the petitioner. That apart, it is

submitted that without challenging the rejection, the petitioner cannot

seek for a mandamus. It is submitted that the respondents have updated

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

the position in the portal regarding the status of the declarations filed by

the petitioner as rejected and have assigned the reasons for the same and

therefore without challenging the aforesaid communication which has

been uploaded in the web portal. It is not open for the petitioner to seek

the relief of mandamus.

5. Arguing further, the learned Junior Standing Counsel for the

respondents further submit that the appeal before the Delhi High Court

against the order acquitting the petitioner under the provisions of the

Prevention of Money Laundering Act, 2002 is a continuation of the

prosecution and therefore the petitioner was not entitled to settle the case

under the Direct Tax Vivad Se Vishwas Act, 2020.

6. By way of re-joinder, the learned counsel for the petitioner on

the other hand has placed reliance on the decision of the Hon'ble Division

Bench of this Court in W.P.No.18853 of 2015 vide order dated

26.08.2015 in the case of Bharat Sanchar Nigam Limited Vs. Rajagopal

and another. A specific reference was made to para 20 of the said order,

which reads as under:-

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

“20.While that be the clear finding recorded in the judgment, acquitting the respondent, under the premise of appeal, being filed and pending, against the order of acquittal, the 1st respondent cannot be deprived of the time bound IDS scale upgradation, endlessly. Disposal of the appeal may take a long time. The 1st respondent is stated to have retired from service. There is no certainty that the State would be satisfied, even if the appeal in the High Court fails. If the State chooses to prefer a further appeal to the Hon'ble Supreme Court, the Department may again contend that the appeal is pending before the Apex Court. Thus, if the arguments of the petitioner have to be accepted, then there is no finality to the judgement of acquittal. In the light of the discussion and decisions considered, the further contention of the learned counsel that Vigilance has not given a clearance, cannot be countenanced.”

7. I have considered the arguments advanced by the learned

counsel for the petitioner and the learned Junior Standing Counsel for the

respondents and also perused the affidavit filed in support of the present

writ petition and the counter filed on behalf of the respondents and also

perused the provisions of the Direct Tax Vivad Se Vishwas Act, 2020 and

the rules made thereunder.

8. No doubt, there is an embargo and certain categories of persons

from availing the benefit of the amnesty under the Act. As far as the

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

petitioner is concerned, sting if any would stand attracted in terms of

Section 9(c) of the Act which reads as under:-

“9(c) to any person in respect of whom prosecution for any offence punishable under the provisions of the Unlawful Activities (Prevention) Act, 1967, the Narcotic Drugs and Psychotropic Substances Act, 1985, the prevention of Corruption Act, 1988, the Prevention of Money Laundering Act, 2002, the Prohibition of Benami Property Transactions Act, 1988 has been instituted on or before the filing of the declaration or such person has been convicted of any such offence punishable under any of those Acts;”

9. A reading of the above provisions indicates that either a criminal

case should be pending or it should have resulted in a conviction. There

is no embargo for settling the dispute in respect of a person who has be

acquitted before filing of the declaration. Therefore, there is no merits in

the stand of the respondents.

10. Under these circumstance, I am inclined to allow this Writ

Petition with liberty to the respondents to recall the order in case

conviction is sustained by the Delhi High Court against the petitioner.