Supreme Court Of India
Killick Nixon Ltd. vs. DCIT & Ors.
Sections 142(1), 1998FA (No.2) 87(e), 1998FA (No.2) 87(f), 1998FA (No.2) 87(m), 1998FA (No.2) 88, 1998FA (No.2) 90(1), 1998FA (No.2) 94
Asst. Year 1992-93
Mrs. Ruma Pal & B.N. Srikrishna, JJ.
Civil Appeal No. 2614 of 2001
25th November, 2002
Counsel Appeared
Dastur with R. Muralidhar, B.V. Desai, Sanjeev Singh & Ms. Vanita Mehta, for the Appellant : Rajappa, B.V. Balaram Das & H. Jayaram, for the Respondents
JUDGMENT
B.N. SRIKRISHNA, J. :
This appeal by special leave is directed against the judgment of the High Court of Bombay dt. 4th Dec., 2000 [reported as Killick Nixson Ltd. vs. Dy. CIT & Anr. (2001) 165 CTR (Bom) 280—Ed.] dismissing the writ petition under Art. 226 of the Constitution by which the appellant challenged the notice issued under s. 142(1) of the IT Act, 1961 (hereinafter referred to as ‘the Act’)
2. The brief facts necessary to decide this appeal are as under : On 26th Feb., 1993, the appellant filed its return for asst. yr. 1992-93 and followed it up with a revised return. The AO made an order dt. 27th March, 1995, under s. 143(3) of the Act disallowing certain claims and rejecting the contentions of the assessee. The appellant filed an appeal before the CIT(A). The appellate authority by its order dt. 25th Sept., 1998, confirmed the order of the AO in respect of the following items : (a) Premium amount of Rs. 3,57,153. (b) Depreciation to the extent of Rs. 2,13,000. (c) Interest of Rs. 27,14,000. (Totaling Rs. 32,84,153). With regard to four items/heads the appellate authority set aside the order of the assessment and remitted the matter back to the assessing authority with the direction to recompute/reassess after giving an opportunity of hearing to the assessee. The four items/heads remitted to the AO were : “(a) Whether receipt of Rs. 27,93,977 represented income from house property or whether it represented business income. (b) Claim for bad debt of Rs. 68,02,046. (c) Determination of capital gains to the extent of Rs. 4,00,000. (d) Disallowance under r. 6D to the extent of Rs. 31,963.” Being aggrieved by the decision of the CIT(A), the assessee carried an appeal before the Tribunal in respect of premium, depreciation and interest, which together represented an amount of Rs. 32,84,153. Pursuant to the order of the CIT(A), the AO made an order dt. 25th Sept., 1998, giving effect to the appellate order. The AO determined the assessed income of the appellant at Rs. 33,65,298 and raised a demand of Rs. 26,27,545. In the meanwhile, Kar Vivad Samadhan Scheme, 1998 (hereinafter referred to as KVSS) was brought into effect by Finance (No. 2) Act, 1998. The appellant filed a declaration under the KVSS on 20th Nov., 1998, disclosing its assessed income as Rs. 33,65,298 and working out the tax payable under the Scheme at Rs. 8,65,795. The said declaration was accepted by the Designated Authority under the KVSS by an order dt. 19th Jan., 1999, made under s. 90(1) of the Finance (No. 2) Act, 1998. The Designated Authority accepted the assessed income of the appellant at Rs. 33,65,298 and determined the tax payable by the appellant at Rs. 9,35,888. This amount of Rs. 9,35,888 was paid by the appellant on 12th Feb., 1999 upon which a final certificate under s. 92 r/w s. 91 of the Finance (No. 2) Act, 1998 and the KVSS, 1998, was issued certifying that the appellant had paid towards full and final settlement of the tax arrears determined in the order dt. 19th Jan., 1999, on the declaration made by the appellant and granting immunity consequent under the provisions of the Scheme.
By an order made on 16th Aug., 1999, purportedly under s. 142(1) of the Act, the AO called upon the appellant to furnish details in respect of asst. yr. 1992-93 in connection with taxing of the licence fee of Rs. 24,12,114 received from the State Bank of India for let out portion of its property under the head “Income from house property” as also to furnish evidence to establish that the written off debts had become bad and have been written off in the books of accounts. The appellant protested by its letter dt. 21st Jan., 2000, and pointed out that the assessment for the asst. yr. 1992-93, had obtained finality in view of the declaration under KVSS, the determination of the tax under the Scheme and the final certificate issued by the Designated Authority. The AO refused to accept it as final closure of the proceedings pertaining to asst. yr. 1992-93. Hence, the appellant moved the High Court under Art. 226 to quash the impugned notice and further proceedings consequent thereto. The High Court by its judgment dt. 4th Dec., 2000, dismissed the writ petition. Hence, this appeal.
3. A look at the material provisions of KVSS is necessary to appreciate the contentions urged. Sec. 87—”In this Scheme, unless the context otherwise requires : xxx xxx xxx (e) “disputed income”, in relation to an assessment year means the whole or so much of the total income as is relatable to the disputed tax; (f) “disputed tax” means the total tax determined and payable in respect of an assessment year under any direct tax enactment but which remains unpaid as on the date of making the declaration under s. 88 : xxx xxx xxx (m) “tax arrear” means—(i) in relation to direct tax enactment, the amount of tax penalty or interest determined on or before the 31st day of March, 1998, under that enactment in respect of an assessment year as modified in consequence of giving effect to an appellate order but remaining unpaid on the date of declaration;” Sec. 88—”Subject to the provisions of this Scheme, where any person makes, . . . On or after the 1st day of September, 1998, but on or before the 31st day of December, 1998, a declaration to the Designated Authority in accordance with the provisions of s. 89 in respect of tax arrears, then, notwithstanding anything contained in any direct tax enactment or indirect tax enactment or any other provision for any law for the time being in force, the amount payable under the Scheme by the declarant shall be determined at the rates specified hereunder, namely : (a) Where the tax arrear is payable under the IT Act, 1961 (43 of 1961): (i) in the case of a declarant being a company or a firm, at the rate of thirty-five per cent of the disputed income;” Sec. 90—”(1) Within sixty days from the date of receipt of the declaration under s. 89, the designated authority shall, by order, determine the amount payable by the declarant in accordance with the provisions of the Scheme and grant a certificate in such form as may be prescribed to the declarant setting forth therein the particulars of the tax arrear and the sum payable after such determination towards full and final settlement of tax arrears;” Sec. 94—”For the removal of doubts, it is hereby declared that, save as otherwise expressly provided in sub-s. (3) of s. 90, nothing contained in this Scheme shall be construed as conferring any benefit, concession or immunity on the declarant in any assessment or proceedings other than those in relation to which the declaration has been made.”
The Scheme of the KVSS is to cut short litigations pertaining to taxes which were frittering away the energy of the Revenue Department and to encourage litigants to come forward and pay up a reasonable amount of tax payable in accordance with the Scheme after declaration thereunder. The learned senior counsel for the appellant contended that once the assessment for the entire year was settled by following the provisions of the Scheme and the Designated Authority after application of mind had made an order under s. 90, which was complied with by making payment of the tax computed under the Scheme, there was no question of reopening any issue which were subject-matters of the order of the Designated Authority. He urged that the order of the Designated Authority is not mechanically passed, but upon careful scrutiny of all the facts and circumstances pertaining to the declarant- assessee and intended to bring about certain legal consequences under the KVSS. It was not open to the IT authorities to put back the clock by going back thereupon. The order of the Designated Authority is conclusive on all items/heads, which go into the computation of the total income of the assessee and not confined only to the heads of income in respect of which an appeal or reference may be pending. Counsel for the Revenue, however, emphasized that the expression “determined and payable” used in s. 87 gives a clue to understanding the section. He contended that, in the case of the present appellant, the giving effect order made by the CIT(A) had not been fully worked out by the AO as income under the four heads i.e., (a) disallowance of bad debts to the extent of Rs. 68,02,046; (b) income from house property to the extent of Rs. 27,93,977; (c) dispute regarding capital gains to the extent of Rs. 4,00,000 and (d) disallowance under r. 6D amounting to Rs. 31,963 and had not been finally computed by the assessing authority after the findings of the assessing authority on these four heads were set aside by the CIT(A) and the matter was remitted to the assessing authority. It is urged that the sum of total of these amounts would be in the vicinity of Rs. 99 lacs, while the dispute before the Tribunal was only confined to disallowance of interest (Rs. 2,71,400), disallowance of depreciation (Rs. 2,18,000) and disallowance in respect of premium paid (Rs. 3,57,153). The demand notice issued was only in respect of these items totalling Rs. 33,65,298, this amount which had been declared under the KVSS on which the appellant paid paltry amount of Rs. 9,35,888 as tax in full and final settlement. It is also contended that the appellant has escaped payment of tax on a large income of approximately Rs. 99,00,000 in respect of bad debts, income from house property, capital gains and disallowance under r. 6D as these disputed issues were never determined by the AO. The Designated Authority had assessed the income of the appellant at Rs. 33,65,298 only on the basis of KVSS and that he could not have worked out the assessable income as the AO had not yet determined the income under the above four heads. We are unable to accept the contention urged on behalf of the Revenue on both counts. In the first place, we are unable to accept that the AO in his order dt. 25th Sept., 1998, while giving effect to the order of CIT(A), had not taken account of the four major heads of dispute amounting to about Rs. 99 lacs. A reference to that order (which is at Exhibit C-1 to the writ petition) makes the situation clear. The AO starts by saying “Consequent upon the order of the CIT(A) C1/AP.72/95-96 dt. 16th March, 1998, the total income of the assessee is recomputed as under :”
Then he starts with the figure of loss arrived at by his order dt. 27th March, 1995, at Rs. 54,28,077 and adds thereto to the following items. Receipts of compensation treated as bad Rs. 54,28,077 debts as against income from other sources in the original order (p. 5) Rent & licence fees treated as business Rs. 27,93,977 income as against income from house property in the original order (p. 7) Interest income treated as business income Rs. 15,49,724 against income from other sources in the original order (p. 29) Totalling Rs. 2,00,81,732 He again deducts therefrom the reliefs which had been allowed by CIT(A) on account of following : Interest disallowance (p. 14) (70,50,000-Rs. 43,35,244 27,14,756) Disallowance under r. 6B (p. 17) Rs. 1,25,279 Foreign travel expenses (p. 21) Rs. 53,740 Finally, he further deducts the relief allowed on account of set-aside issues: Bad debt (p. 10) Rs. 68,02,046 Income from property Rs. 29,52,492 Treated as business income Rs. 27,93,977 Income from other sources Rs. 1,73,18,438 After making these calculations, he arrived at the revised income Rs. 33,65,298. Finally, he appends a note on the foot of the order saying, “the following points are set aside by the CIT(A) to be done afresh after giving an opportunity to the assessee of being heard” and indicates the four major heads. A careful scrutiny of this order suggests that, even while giving effect to the CIT(A) order, the AO has taken account of bad debt amounting to Rs. 68,02,046 and amount treated as business income as per the appellate authority direction of Rs. 27,93,977 while working out the revised total income. Out of the four items indicated at the end of the order item Nos. 1 and 2 (Income from house property = Rs. 27,93,977 and claim of bad debt = Rs. 68,02,046) have been deducted by the assessing authority, indicating that he agrees with the assessee’s claim. The assessing authority does not seem to have taken account of two other items (Capital gains = Rs. 4,00,000 and r. 6D disallowance = Rs. 31,963). We are, therefore, unable to accept the contention that the assessing authority had not assessed the disputed heads while giving effect to the CIT(A)’s order. We are fortified in our conclusion by reason of the fact that no demand notice/refund order could have been issued if the assessment was not complete. If the AO had not completely assessed the income after taking note of the four issues remitted in him, there was no question of determining the revised total income, much less was there any scope for issuing a demand notice/refund order at that stage. Hence, we are unable to accept that the AO had not fully given effect to the CIT(A) order with respect to the four major heads.
It is true that even after this order there was correspondence between the appellant and authorities with respect to disallowance of certain items of tax deducted at source as the appellantassessee was unable to produce documentary evidence, though it had furnished the necessary indemnity bonds. That, however, was an outstanding dispute by which the assessee, if at all, could be aggrieved. It is also pointed out that revised assessment order giving effect to the appellate order has not taken account of the heads of ‘capital gains’ and r. 6D disallowance totalling Rs. 4,31,963. The grievance, if any, on this count can only be made by the assessee and not the Revenue. As far as the provisions of KVSS are concerned, we agree with the contention of the learned senior counsel for the assessee that the order to be made by the Designated Authority under s. 90 is a considered order which is intended to be conclusive in respect of tax arrears and sums payable after such determination towards full and final settlement of tax arrears. Once the declarant makes payment of the amount so determined under s. 90, the immunity under s. 91 springs into effect. We are also of the view that upon such declaration being made, tax arrears being determined, paid and certificate issued under the KVSS, there is no jurisdiction for the AO to reopen the assessment by a notice under s. 143 of the Act except where the case falls under the proviso (2) of sub-s. (1) of s. 90 as it is found that any material particular furnished in the declaration is found to be false. In the present case, it is not the case of the Revenue that any material particular furnished by the appellant-assessee in the declaration was found to be false. Consequently, the AO could not have reopened the assessment by a notice under s. 143 of the Act. In our view, the High Court erred in both counts in dismissing the writ petition. In the result, we allow the appeal, set aside the judgment of the High Court and quash the notices under s. 142(1) of the Act dt. 16th Aug., 1999 and 30th Dec., 1999, r/w letter dt. 16th Aug., 1999, 30th Dec., 1999 and 15th Feb., 2000. In the facts and circumstances of the case, there shall be no order as to costs.
[Citation : 258 ITR 627]
