Bombay High Court
Umesh Navnitlal Shah Huf vs Income Tax Officer-Circle 18(3)(5) And … on 8 January, 2025
Author: M. S. Sonak
Bench: M.S. Sonak
Digitally signed
2025:BHC-OS:250-DB WP-1090.21-2.DOCX
by LAXMIKANT
LAXMIKANT GOPAL
GOPAL CHANDAN
CHANDAN Date:
2025.01.08
16:28:10 +0530
lgc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1090 OF 2021
Umesh Navnitlal Shah HUF ]
20, 5th Floor, Swashray Building, E Road, ]
81, Marine Drive, Mumbai - 400 002 ]
PAN : AAAHU6459D ].....Petitioner.
Versus
1] Income Tax Officer - Circle 18(3)(5), ]
having office at 6th Floor, Earnest ]
House, Nariman Point, Mumbai - ]
400021 ]
]
2] Principal Commissioner of Income ]
Tax - 19 (Designated Authority ]
under Direct Tax Vivad se Vishwas ]
Act, 2020) having office at 2nd Floor ]
Matru Mandir, Tardeo, Mumbai ]
]
3] Commissioner of Income Tax ]
(Appeals) - 29 having office at Room ]
No.208, Kautilya Bhavan, Bandra ]
Kurla Complex, Bandra (East), ]
Mumbai ].....Respondents
______________________________________________________
Mr K. Gopal and Ms. Neha Paranjape, for the Petitioner.
Mr Siddharth Chandrashekhar, for Respondent Nos. 1 to 3.
______________________________________________________
CORAM M.S. Sonak &
Jitendra Jain, JJ.
Reserved on : 06 January 2025
Pronounced on : 08 January 2025
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JUDGMENT :
(Per M. S. Sonak, J.)
1. Heard learned counsel for the parties.
2. Rule. The rule is made returnable immediately at the request
of and with the consent of learned counsel for the parties.
3. The Petitioner seeks the following substantive reliefs in this
Petition:-
a. That this Hon’ble Court may be pleased to issue under
Article 226 of the Constitution of India an appropriate
direction order or a writ including a writ in the nature of
‘Certiorari’ to call for the records and verify the declaration
filed under section 4(1) of the DTVSV Act and direct the
Respondent no. 2 to accept the amount payable as
determined by the Petitioner in the declaration dated
21.03.2020 as per section 3(a) of the DTVSV Act and
grant the refund as sought in the same.
b. That the Hon’ble Court may be pleased to issue under
Article 226 of the Constitution of India appropriate writ or
order or direction including a writ in the nature of
‘Mandamus’ directing the Respondent No. 2 to accept the
amount payable as per section 3(a) of the DTVSV Act as
determined by the Petitioner in the declaration dated
21.03.2020 filed in Form 1 and 2 and grant the refund as
claimed in the same.
c. That this Hon’ble Court may be pleased to issue under
Article 226 of the Constitution of India an appropriate writ
or order or direction including a writ in the nature of
‘Prohibition’ restraining the Respondent no. 3 from
disposing of the appeals pending before him and the
Respondent no. 1 and 2 from recovering the outstanding
demand disputed in appeals pending before the
Respondent no. 3.
d. That this Hon’ble Court may be pleased to issue an
appropriate direction or order restraining the Respondents
from initiating the recovery proceedings with respect of
the ‘disputed tax’ determined by the Respondent No.3 in
the certificate issued in Form 3 and restrain the
Respondent no.3 from disposing of the appeal pending
before him till the disposal of the present Writ Petition.”
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4. At the outset, Mr. K Gopal, the learned counsel for the
Petitioner, submitted that the calculation of the amount at the rate
of 125% by relying upon the circular dated 04 December 2020 was
entirely illegal and ultra-vires. He submitted that this calculation is
based on the premise that a search was executed in some other
taxpayer’s case and that this was not a case of voluntary disclosure
by the Petitioner or that this was not a “non-search” case. He
submitted that this was indeed a “non-search case”, and the
Respondents accept this position in paragraph 34 of the Affidavit-
in-Reply filed by Mr Vimalendu Verma – Principal Commissioner of
Income Tax – 19 on 17 July 2021. Accordingly, he submitted that
the calculation should have been based on the rate of 100% of the
disputed tax, not 125%. Mr Gopal relied upon Bhupendra Harilal
Mehta Vs. Principal Commissioner of Income-tax, Mumbai-19 1, in
support of this contention.
5. Mr. Gopal submitted that the non-consideration of the
additional grounds raised by the Petitioner in the Appeals
instituted before the specified date was illegal and arbitrary. He
submitted that attempts were made to raise these grounds before
31 January 2020, but this was not possible because of transitional
issues and software glitches. He submitted that on 04 December
2020, the Petitioner did raise additional grounds challenging the
addition of Rs.2,02,50,919/- on account of Long-Term Capital
Gains (“LTCG”) under Section 68 of the Income Tax Act, 1961.
However, the Respondents have not considered these grounds for
determining the disputed tax under the Direct Tax Vivad Se
Vishwas Act, 2020 (“DTVSV Act“).
1
(2021) 435 ITR 220 (Bombay)
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6. Mr. Gopal submitted that the Respondents have also failed to
consider and apply CBDT Circular No.21 of 2020, dated 04
December 2020, which specifies that additional grounds must be
considered when computing disputed tax. He submitted that the
CBDT Circulars are binding upon the Respondents, and their non-
consideration or non-application is illegal and arbitrary.
7. Mr. Gopal submitted that the reliefs claimed in this Petition
may be granted based on the above contentions.
8. Mr.Siddharath Chandrashekhar, the learned counsel for the
Respondents, submitted that the Petitioner’s case was incorrectly
treated as a “search case” for computation of the amount payable
under the DTVSV Act. He submitted that this error is
acknowledged and will be corrected as stated in paragraph 34 of
the Principal Commissioner’s Affidavit in Reply dated 17 July 2021.
9. Mr. Chandrashekhar, however, submitted that there is no
merit whatsoever in the Petitioner’s second contention. He
submitted that this contention was clearly in the nature of a
belated afterthought. This contention was raised after the
Petitioner conceded to adding Rs.2,02,50,919/- under Section 68
of the Income Tax Act. This attempt was only to secure the
additional benefits under the DTVSV Act, even though the
Petitioner was not entitled to such benefits. Accordingly, Mr.
Chandrashekhar submitted that there is no illegality or
arbitrariness involved in not considering this amount to determine
the disputed tax.
10. Mr. Chandrashekhar submitted that there was no breach of
the CBDT Circular dated 04 December 2020 because the circular
provides that any additional ground filed on or before 31 January
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2020 (specified date) could be considered. He pointed out that in
the present case, the application for amendment was made only on
04 December 2020. Therefore, he submitted that there was no
question of considering these additional grounds even under the
Circular dated 04 December 2020.
11. Mr. Chandrashekhar submitted that there were no
transitional issues or software glitches, as the Petitioner vaguely
claimed. He pointed out that there was not even correspondence to
support such contention. He, therefore, submitted that there was
no ground for including the amount of Rs.2,02,50,919/- in the
“disputed tax” and awarding the Petitioner any additional benefits
under the DTVSV Act/Scheme.
12. Mr. Chandrashekhar accordingly submitted that except for
redressing the Petitioner’s first grievance, no other reliefs ought to
be granted to the Petitioner in this Petition.
13. The rival contentions now fall for our determination.
14. On 11 July 2014, the Petitioner filed its return of income for
Assessment Year 2014-15, declaring a total income of
Rs.10,46,510/–after claiming a deduction of LTCG under Section
10(38) of the Income Tax Act. During the assessment, the first
Respondent, relying upon the information received from the
Investigation wing, doubted the genuineness of the LTCG
deduction. Accordingly, the petitioner was granted an opportunity
to show cause and clear such doubts.
15. On 25 November 2016, the Petitioner tried to contend that
the claim under Section 10(38) was genuine and supportable by
documents. However, to buy peace and avoid litigation, the
Petitioner voluntarily offered this LTCG amount of
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Rs.2,02,50,919/- to tax under Section 68 of the Income Tax Act. In
the concluding paragraph of the communication dated 25
November 2016, the Petitioner pleaded against initiating any
penalty proceedings under Section 271(1)(c) of the Income Tax
Act.
16. The penultimate and ultimate paragraphs of the Petitioner’s
communication dated 25 November 2016 are transcribed below for
the convenience of reference: –
“Voluntarily Offering the LTCG to Tax
Your assessee believes that the entire transaction as
elucidated herein above was carried out in good faith and
for value. The bonafides of the transaction have been
clearly brought out in the above explanation as regards the
LTCG on sale of 46250 shares of Sunrise Asian Limited. It
is equally clear that the gains also qualify for the
exemption since the transaction is properly covered by
section 10(38) of the ActIn as much as from the clarifications relating to the nature
of your assessee’s transactions & the stock exchange
position of Sunrise Asian Limited it seems clear that your
assessee is eligible to claim the requisite exemption u/s.
10(38), your assessee voluntarily offers the LTCG of
Rs.2,02,50,919/- on sale of 46250 shares of Surise Asian
Limited to income tax. This voluntary offering of income is
in light of recent tax controversies surrounding the
claiming of exemption of LTCG on disinvestment of equity
shares. Thereby your assessee is voluntarily giving up the
claim of LTCG exemption in order to buy peace of mind
and to avoid any tax controversies and litigations.
Penalty Proceedings under the Act
As is evident from the above, the bonafides of the
transaction are not in question & that your assesse has
voluntarily agreed to offer the exempt LTCG to income tax,
there is every reason to believe that true and complete
particulars of the facts have already been provided by the
assessee In that light, your assessee pleads before your
honours to avoid the initiation of any penal proceedings as
against the assessee u/s 271(1)(c) of the Act.
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Kindly take the above matters on your records and oblige
For Umesh N Shah HUE,
UMESH NAVNITLAL SHAN HUF
Mr Umesh N Shah KARTA
Karta”
17. On 26 December 2016, the Income Tax Officer (Respondent
No.1) made an Assessment Order under Section 143(3) of the
Income Tax Act, making addition of Rs.2,02,50,919/- by denying
the claim of LTCG under Section 10(38) of the Income Tax Act and
further made a disallowance of Rs.9,11,037/- towards commission
allegedly paid by the Petitioner under Section 69C of the Income
Tax Act. This Assessment Order, dated 26 December 2016, is at
Exhibit-C (pages 42 to 44 of the paper book of this Petition).
18. The Assessment Order dated 26 December 2016, after
computing the Petitioner’s total income at Rs.2,22,08,470/-, clearly
provides that penalty proceedings under Section 271(1)(c) are
being initiated separately. Therefore, it is not as if the Petitioner
was unaware that its plea for non-initiation of penalty proceedings
under Section 271(1)(c) of the Income Tax Act was rejected by the
Income Tax Officer vide Assessment Order dated 26 December
2016.
19. On 27 January 2017, the Petitioner appealed the Assessment
Order dated 26 December 2016 only to the extent of disallowance
of Rs.9,11,037/- under Section 69C of the Income Tax Act.
However, the Petitioner did not appeal the addition of
Rs.2,02,50,919/- towards LTCG. This was obviously because the
Petitioner had conceded and agreed that this amount was liable to
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be added to the total income and that the Petitioner was not
claiming any deduction under Section 10(38) of the Income Tax
Act. This is evident from the perusal of the Appeal Memo at
Exhibit-D (Pages 45 to 50 of the paper book of this Petition). The
Petitioner even paid the tax on this added amount without any
demur.
20. As indicated in the Assessment Order dated 26 December
2016, penalty proceedings were separately initiated against the
Petitioner. On 29 June 2017, the Income Tax Officer passed an
order under Section 271(1)(c) of the Income Tax Act levying a
concealment penalty of Rs.72,07,774/–on the additions towards
LTCG and commission.
21. The Petitioner, aggrieved by the penalty order dated 29 June
2017, instituted an Appeal on 01 August 2017. However, this
appeal was only restricted to challenging the penalty levy on the
two added amounts. In the statement of facts filed along with the
appeal memo, the Petitioner contested the additions made in the
assessment order only for the limited purpose of quashing the
penalty order. This is evident from the Appeal Memo at Exhibit-F
(pages 53 to 62 of the paper book of this Petition).
22. When both Appeals were pending, the DTVSV Act 2020
came into force, providing for an amnesty scheme. Section 3 of this
Act provides that subject to the provisions of this Act, where
declarant files under the provisions of this Act on or before the last
date, a declaration to the designated authority in accordance with
the provisions of Section 4 in respect of tax arrears, then,
notwithstanding anything contained in the Income-tax Act or any
other law for the time being in force, the amount payable by the
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declarant under the Act shall be as specified in the table in Section
3 of the said Act.
23. The Table in Section 3 of the DTVSV Act refers to the
computation of the amount payable based on the amount of the
disputed tax. The expression “disputed tax” is defined under
Section 2(j) of the DTVSV Act and, in the context of the present
Petition, is to be computed under Section 2(j)(A) of the DTVSV
Act. Thus, the “disputed tax”, in the context of the issue raised in
the present Petition, means the income tax, including surcharge
and cess payable by the appellant under the provisions of the
Income-tax Act, 1961, as computed hereunder: –
“(A) In a case where any appeal, writ petition or special
leave petition is pending before the appellate forum as on
the specified date, the amount of tax that is payable by the
appellant if such appeal or writ petition or special leave
petition was to be decided against him.”
24. The expression “specified date” referred to in Section 2(j)(A)
is defined under Section 2(n) of the DTVSV Act to mean the 31st
day of January 2020. Thus, the amount payable under the DTVSV
Act, at least in the present case, must be determined based on the
amount of tax payable by the Petitioner if its two appeals pending
as of 31 January 2020 were to be decided against the Petitioner.
25. As noted earlier, in the Appeal instituted by the Petitioner on
27 January 2017, the Petitioner had only challenged the
disallowance of Rs.9,11,037/- under Section 69C of the Income
Tax Act. In the appeal instituted by the Petitioner on 01 August
2017, the Petitioner only challenged the penalty of Rs.72,07,774/-
on both the additions ordered in the Assessment Order dated 26
December 2016. As of the specified date, i.e. 31 January 2020,
there was no challenge to adding Rs.2,02,50,919/- towards LTCG.
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This was because the addition was based on Petitioner’s concession
and acknowledgement.
26. The CBDT issued Circular No.21 of 2020 on 04 December
2020. This circular contains certain Frequently Asked Questions
(“FAQs”) in the context of implementing the DTVSV Act. The
Petitioner relies on the Answer to FAQ 77. Therefore, FAQ 77 and
the answer to the same are transcribed below for the convenience
of reference: –
Question No. 77 Whether any additional ground filed in relation to an
appeal is to be considered while computing disputed
tax?
Answer If any additional ground has been filed on or before
January 31, 2020, it shall be considered for the
purpose of computing disputed tax.
27. Significantly, on 04 December 2020 itself, the Petitioner, vide
the document at Exhibit-G (pages 63 to 66 of the paper book of
this Petition), attempted to raise additional ground in the pending
Appeal to belatedly challenge the addition of Rs.2,02,50,919/–on
account of LTCG under Section 68 of the Income Tax Act. This
attempt was made after the filing of the declaration under the
DTVSV Scheme.
28. Though the learned counsel for the Petitioner tried to
contend that for the period between 27 January 2017 and 31
January 2020, the Petitioner made attempts to amend the Appeal
Memo by raising a challenge to the addition of the amount of
Rs.2,02,50,919/- and the Petitioner was unable to do so account of
transitional issues and software glitches, we find that there is
absolutely nothing on record to substantiate this contention.
Assuming that such attempts were made, the minimum expected
was some correspondence on this issue, which would have
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included some grievances about transitional issues or software
glitches. Besides, it is unlikely that the Petitioner, having explicitly
conceded to the addition of Rs.2,02,50,919/- towards the LTCG
claim and paid tax thereon, would have turned around and
challenged such addition when such addition was based on the
Petitioner’s concession or rather acknowledgement.
29. Besides, if the Petitioner was indeed and seriously aggrieved
by adding Rs.2,02,50,919/- in the Assessment Order dated 26
December 2016, the Petitioner would have challenged the same in
the Appeal lodged on 27 January 2017. At least at that stage, there
was no question of any transitional issues or software glitches. The
Petitioner did file an Appeal on 27 January 2017 without any
difficulty. Still, in the said Appeal, the Petitioner chose to challenge
only the disallowance of Rs.9,11,037/- under Section 69C of the
Income Tax Act and not the addition of Rs.2,02,50,919/- towards
the claim of LTCG under Section 68 of the Income Tax Act. This
was the conscious decision simply because this addition of
Rs.2,02,50,919/- was based upon the concession or the
acknowledgement of the Petitioner, and it would be highly odd for
the Petitioner to challenge the same. The Petitioner paid taxes on
this conceded addition.
30. Mr. Gopal, however, submitted that the concession regarding
LTCG was made on the premise that no penalty would be imposed
on the Petitioner. He submitted that since a penalty was imposed,
the Petitioner had every right to challenge the addition of
Rs.2,02,50,919/–to LTCG. At least from a plain reading of the
Petitioner’s communication dated 25 November 2016 (Exhibit-B),
we cannot hold that this was some case of plea bargaining
(assuming such plea bargaining is permissible) or that the
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concession or acknowledgement was based on the premise that no
penalty could be levied upon the Petitioner.
31. In any event, the Assessment Order dated 26 December 2016
explicitly referred to the initiation of penalty proceedings under
Section 271(1)(c) of the Income Tax Act regarding the addition of
Rs.2,02,50,919/- and the disallowance of Rs.9,11,037/-.
Therefore, at that stage, nothing prevented the Petitioner from
appealing the addition of Rs.2,02,50,919/- in the Appeal instituted
on 27 January 2017 to challenge the addition of Rs.9,11,037/-
under Section 69C of the Income Tax Act. Also, nothing prevented
the Petitioner from amending the Appeal Memo for the lengthy
period between 27 January 2017 and 31 January 2020.
32. By simply and vaguely alleging transitional issues or
software glitches, the Petitioner cannot gloss over its apparent
attempt to belatedly amend its appeal and see if any additional
benefits could be availed under the DTVSV Act or Scheme. As
noted earlier, the Petitioner appealed the penalty order dated 29
June 2017, levying a penalty on both additions. However, even at
that point in time, there is no material on record to show that the
Petitioner retracted from the concession given regarding the
addition of Rs.2,02,50,919/-, either by raising an additional
ground or otherwise in such an appeal. Only after the DTVSV Act
came into force, or rather, only after the CBDT issued its Circular
dated 04 December 2020, was an attempt made by the Petitioner
to belatedly amend the Appeal Memo and challenge the addition
of Rs.2,02,50,919/-.
33. While giving the Petitioner benefits of the DTVSV Scheme,
the Respondents correctly refused to consider this belated attempt
to amend the Appeal Memo, claiming that even Rs.2,02,50,919/-
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constituted a “disputed tax”. Such approbation and reprobation
were quite correctly not appreciated by the Respondents. The
Respondents’ approach is consistent with the DTVSV Act and the
CBDT circular dated 04 December 2020.
34. The DTVSV Act aims to settle tax disputes pending in Courts
and other adjudicatory authorities as of the specified date. This Act
is not some licence to revive settled disputes and, based thereon,
claim refunds of the tax paid without demur or expand the scope
of the disputes post facto and seek relief under the provisions of
the DTVSV Act or the amnesty schemes. The petitioner attempted
to post facto and belatedly expand the scope of the dispute to
include amounts that the Petitioner had explicitly conceded as
liable to additions. The Petitioner never appealed such additions
and restricted its appeal only to the addition of Rs.9,11,037/-
under Section 69C of the Income Tax Act. The Petitioner also paid
the tax on the added amount of Rs.2,02,50,919/- towards LTCG.
By such a belated expansion of the disputes, the object of the
DTVSV Act or the amnesty schemes cannot be frustrated.
35. The remedies under Articles 226 and 227 of the Constitution
are discretionary and equitable. Such jurisdiction must be
exercised to promote justice. Here is the Petitioner, who conceded
and acknowledged the addition of Rs.2,02,50,919/- towards LTCG,
which was incorrectly claimed. It paid tax on this amount without
any serious demur. Naturally, therefore, the Assessment Order
dated 26 December 2016, which made the addition based upon
such concession/acknowledgement, could not have been ordinarily
appealed by the Petitioner. The Petitioner, therefore, did not appeal
this addition in the Memo of Appeal lodged on 27 January 2017.
By attempting to amend the appeal memo belatedly and after the
specified date, this amount of Rs.2,02,50,919/- towards LTCG
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cannot be considered the disputed tax amount. If this is permitted,
the Petitioner, by such a subterfuge or by creating an artificial
dispute, will claim a refund of the tax paid without demur or claim
concessions even with respect to undisputed taxes already paid.
36. Accordingly, for all the above reasons, we are satisfied that
the Respondents did not act illegally or arbitrarily in not
considering the additional grounds concerning the addition of
Rs.2,02,50,919/–in determining the amount payable under the
DTVSV Act. Therefore, the challenge on this count is liable to be
rejected and is hereby rejected.
37. However, the Petitioner is on firm ground in contending that
the Petitioner’s case was not a “search case”, or that it was a “non-
search case”, and therefore, the computation at the rate of 125% as
also FAQ 70 of Circular dated 04 December 2020 could be
adopted. The record shows, and in fact, it was conceded by the
Respondents, that the Petitioner’s case was a “non-search case”.
Therefore, the computation could not be at the rate of 125% but
had to be at the rate of only 100%.
38. The decision in Bhupendra Mehta (Supra) supports the
Petitioner’s case regarding the computation of the tax payable
amount at 100% instead of 125%. The Respondents conceded this
position at the stage of arguments and in the Principal
Commissioner’s Affidavit dated 17 July 2021. Accordingly, limited
interference on this aspect is called for in this matter.
39. In the above regard, we refer to the averments in paragraph
34 of the Principal Commissioner’s Affidavit dated 17 July 2021.
The same is transcribed below for the convenience of reference: –
“34. However, subsequently, based on the decision of the
Hon’ble Bombay High Court in the case of BhupendraPage 14 of 15
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WP-1090.21-2.DOCXHarilal Mehta Vs Principal Commissioner of Income Tax,
Mumbai and Others dated 27.04.2021 in Writ Petition
No.586 of 2021, assessee’s case has been treated as a non-
search case for determination of amount payable under
DTVSV and the amount payable under DTVSV is calculated
@100%. Accordingly, a revised Form 3 determining the
amount payable @ 100% of the disputed tax for A.Y. 2014-
15 is being issued by the Competent Authority.”
40. Mr Gopal submitted that, to date, the revised Form-3 has not
been issued by the Competent Authority. Considering that the
Affidavit was filed on 17 July 2021, this revised Form-3 should
have been issued by now. In any event, we direct that revised
Form-3 determining the amount payable at the rate of 100% of the
disputed tax for the Assessment Year 2014-15 should be issued by
the Competent Authority to the Petitioner within 30 (thirty) days
from today, along with all consequential benefits.
41. Thus, the claim for including Rs.2,02,50,919/- for benefits
under the DTVSV Act/Scheme is rejected. However, the Petitioner’s
contention about determining the amount payable at the rate of
100% of the disputed tax for the Assessment Year 2014-15 is
allowed, and the Respondents are directed to issue the revised
Form-3 as undertaken by them in their Affidavit within 30 (thirty)
days from today along with all consequential benefits.
42. The Rule is made partly absolute in the above terms without
any costs orders. Interim orders, if any, are vacated.
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