RADHIKA PRAKASHAN PVT LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONER is seeking the issue of writ to the respondents to accept the declaration under Section 89 of the Finance Act No. 2 of 1998 for assessment year 1990-91 which was filed on 28-1-99 under "kar Vivad Samadhan Scheme".

(2.) THE petitioner is a company engaged in publication of newspaper "swadesh". Petitioner filed the return of income on 31st December, 1990 declaring loss of Rs. 1,09,240/ -. The Assessing Officer completed assessment under Section 143 (3) of Income Tax Act on 31st March, 1993 on a total income of Rs. 2,78,760/ -. The Assessing Officer made total addition of Rs, 3,88,000/-to the disclosed income. Aggrieved by the order of the Assessing Officer, an appeal was preferred before the Commissioner of Income Tax (Appeal), Bhopal. The Commissioner of Income Tax (Appeal), Bhopal confirmed the various additions made by the Assessing Officer. Aggrieved by the order of Commissioner of Income Tax (Appeal), Bhopal, petitioner filed an appeal to the Income Tax Appellate Tribunal, Indore Bench, Indore registered as ITA No. 503/ind/94. The appeal was dismissed in default of appearance of the Counsel for petitioner on 4-9-98. Misc. application was filed for restoration; the Tribunal vide order dated 1-6-1999 (Annexure P-2) recalled the order and restored the appeal. The appeal was ultimately dismissed on 10th May, 2000. While the appeal of the petitioner was pending before the Tribunal, Union of India introduced "kar Vivad Samadhan Scheme, 1998". The scheme was operative from 1st September, 1998 to 31st of January, 1999. The scheme was aimed to provide the quick and voluntary settlement of tax dues which were locked in litigation. Petitioner filed declaration under Section 89 of the Finance Act No. 2 of 1998. In this declaration the petitioner worked out disputed tax payable of Rs. 60,173/- and offered to pay this tax. The respondent as per order dated 26th February, 1999 filed the declaration as no appeal was pending on the date of filing of declaration. Petitioner moved an application Annexure P-8 on 8-7-99 pointing out that restoration was accepted on 1-6-1999 and appeal was still pending before the Tribunal. Thus, his declaration under Section 89 should be revived and considered on merits. The same did not find favour with the respondent Commissioner of Income Tax and the prayer was disallowed on 13th September, 1999 as per order Annexure P-9.

(3.) THE respondents in their return contend that no appeal was pending before the appellate authority on 28-1-1999 declaration filed by the petitioner under Section 89 was rejected on the ground that appeal was not pending on the date of filing declaration. The precondition for admittance of declaration under Section 88 of the Finance Act No. 2 of 1998 was that appeal or reference was preferred or writ petition should have been admitted and pending before any appellate authority or High Court or Supreme Court on the date of such declaration which was not satisfied in the instant case. The case stood dismissed in default of appearance and was restored later on and the factum of restoration does not enure to the favour of the petitioner.