Sri Jnanananda Sharma Pathak vs Commissioner of Income Tax and Another

P.P. Naolekar, C. J.

The appeal was admitted on the following questions of law :

"Whether, on the facts and in the circumstances of the case, submission of the return under the amnesty scheme of 1985-86 without predepositing the tax, the assessee is entitled to get benefit of the amnesty scheme of 1985-86 ?"

The brief facts which are necessary for adjudication of the question involved in this case are that a search was conducted by the Central Bureau of Investigation (CBI) at the residence of the assessee, the present appellant, on December 28, 1986, and a sum of Rs. 12,07,350 in cash and Rs. 8,25,000 in FDR were seized and attachment order was passed by the Central Bureau of Investigation. After the search, the assessee has filed a return of income on March 31, 1987. The other relatives of the assessee also submitted their returns. At the time of filing of the return, the assessee requested the taxing authority to treat the return to be filed under the amnesty scheme. It was stated that the tax on returned income was Rs. 19,742 but the tax deducted was Rs. 10,090 and thus there is a tax which is required to be paid by the assessee. The assessee requested the tax required to be paid to be adjusted from the cash seized by the Central Bureau of Investigation. The Assessing Officer has not accepted the assessee''s return under the amnesty scheme as the challan in token of payment of tax was not enclosed. The Assessing Officer turned down the request made by the assessee for adjustment of the tax from the amount seized by the Central Bureau of Investigation on the reason that the Department is not in possession of the cash seized as it was seized by the Central Bureau of Investigation. It has also come on record that before the tax return was submitted the assessee has withdrawn a sum of Rs. 80,500 from S/B a/c. No. 620 maintained with the UCO Bank, Bonda Branch, on January 1, 1987. Therefore, the Assessing Officer has not accepted the return filed by the assessee under the amnesty scheme. Aggrieved by the said order, the assessee preferred appeal before the Commissioner of Income Tax (Appeals) and thereafter before the Income Tax Appellate Tribunal. The Income Tax Appellate Tribunal was of the view that the benefit under the amnesty scheme can be availed of only after making full payment of the tax and the challan of payment should be attached with the return of income shown under the amnesty scheme and as the assessee filed the return without paying any tax, his return cannot be treated under the amnesty scheme. Aggrieved by the said decision of the Tribunal, the assessee has filed the present appeal.

It is submitted by learned counsel for the appellant that while considering the factor whether the return is to be accepted under the amnesty scheme the taxing authority has also to look into the fact of viability of the tax required to be paid by the assessee and the reasons for which the assessee is incapable of payment of entire tax at the time of submission of the return. Learned counsel for the appellant has further argued that as the Central Bureau of Investigation has already seized a large amount from the assessee the assessing authority should have taken steps to adjust the tax, recoverable from the assessee, from the amount of cash seized by the Central Bureau of Investigation.

On pointedly being asked, learned counsel for the appellant was unable to show us any provision in the amnesty scheme whereby the assessing authority has been given jurisdiction to examine or relax the requirement of payment of the tax at the time of submission of the return. The amnesty scheme speaks of concession given to the assesseee and if one is claiming benefit of the amnesty scheme it is for him to comply with the requirements specified in the amnesty scheme. It is an admitted fact that for getting the benefit of the amnesty scheme the assessee has to pay tax along with the return, which has to be reflected by payment of the tax and the challan thereof is produced along with the return. Under the scheme there is no provision under which the assessing authority can exercise its discretion to relax the condition of tax deposit. Under these circumstances, if the assessee claims that his return is to be treated under the amnesty scheme it is incumbent upon him to show to the assessing authority that the tax has been paid. If the tax is not paid then the assessing authority has no jurisdiction to accept the return under the amnesty scheme.

The decisions of the assessing authority, the appellate authority and the Tribunal are in accordance with law and do not require any interference by this court. The question framed is answered accordingly.