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12-12-2018, Gopal Kesarwani, Section 153A, 180, 1484, HIGH COURT OF ALLAHABAD

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4 weeks 2 days ago #8130 by amit
Section - 153A, 180, 1484, 185, 187, 131, 199-I, 199-J, 132
Order Date - 12-12-2018
Favouring - Revenue
Court - HIGH COURT OF ALLAHABAD
Appellant - Gopal Kesarwani
Respondent - DGIT
Justice - Pradeep Agrawal & Manish Misra
Citation - 1218Taxpundit280
Appeal No. - MISC. BENCH No. - 35701 of 2018
Asstt. Year - 2011-12 to 2016-17

Order

PER : Alok Mathur,J.

Heard Sri Pradeep Agrawal, learned Counsel for the petitioner and Sri Manish Misra, learned Counsel for the respondents. Petitioner has approached this Court by filing instant writ petitionunder Article 226 of the Constitution of India challenging the notice under section 153A of the Income Tax Act along with notices under section 143 (2) of the Act for the assessment years 2011-12 to 2016-17. The petitioner apprehends that for the block assessment for the aforesaid years the assessing officer will include the income declared by the petitioner under the Pradhan Mantri Garib Kalyan Yojana, 2016 (in short "PMGKY") for which the petitioner has already paid tax of Rs.6,01,91,010/- despite the fact that under clause 199I of the said scheme the amount of undisclosed income declared in accordance with section 180 shall not be included in the total income of the declarant for any assessment year under the income tax act, if the declarant make the payment of tax and surcharge referred to in section 184 and penalty referred to in section 185, by the date specified under subsection (1) of section 187.

Learned Counsel for the petitioner has submitted that in pursuance to the Pradhan Mantri Garib Kalyan Yojana, 2016, he had deposited a sum of Rs.10,45,00,000/- (Ten crore forty five thousand only) in Current Account No.437201010035238 with Union Bank of India after demonetization of currency on 09.11.2016 and simultaneously a sum of Rs.4,65,96,000/- (Four crore sixty five lakh ninety six thousand only) was deposited in Current Account No.053010200014049 with Axis Bank out of the sale proceeds for the period 01.04.2016 to 31.03.2017. On 09.12.2016, a notice under Section 131 of the Income Tax Act, 1961 wasissued by the Assistant Director of Income Tax (Investigation)-II, Lucknow to furnish the details of the cash deposited in the aforesaid bank accounts after 10.11.2016 alongwith a copy of the audited accounts for the Financial Year 2015-16. It has further been submitted by the learned Counsel for the petitioner that the Income Tax Department after not being satisfied with the reply, conducted a search at the residential and business premises of the petitioner and his wife. In the meantime, Pradhan Mantri Garib Kalyan Yojana, 2016 (in short "PMGKY") was notified on 17.12.2016 in which the petitioner had surrendered and deposited a sum of Rs.12,06,23,250/- (Twelve crore six lakh twenty three thousand two hundred fifty only), on which, the petitioner had deposited Rs.3,61,86 975/- as tax, Rs.1,19,41,701/- as surcharge and Rs.1,20 62,325/- as penalty and, therefore, the petitioner had deposited Rs.6,01,91,010/- in PMGKY on 31.03.2017.

Learned Counsel for the petitioner has contended that after deposition of the aforesaid amount of Tax, surcharge and penalty, the petitioner is entitled for the benefit of the provisions of Sections 199-I and 199-J of the PMGKY, 2016 and, therefore, the income which is disclosed as aforesaid would not be included in total income and it cannot be assessed subsequently on the income so disclosed by him. The petitioner has further taken us through the notice under Section 153A of the Income Tax Act, which has been issued subsequent to the proceedings issued under Section 153A for the Assessment years 2011-12, 2012-13, 2013-14, 2014-15, 2015-16 and 2016-17 to which the petitioner has submitted a reply on 26.11.2018 to the Deputy Commissioner of Income Tax, Central Circle-II, Lucknow.

A perusal of the said reply filed by the petitioner before the Assessing Officer in pursuance the notices under section 153A for the AY 2011-12 to 2016-17 reveals that the petitioner has duly informed his Assessing Officer about the amount deposited under the aforesaid PMGKY, 2016 and has requested that the said income be not included in the total income for the aforesaid block assessment.

Learned Counsel for the respondent has raised a preliminary objection regarding maintainability of the writ petition. He has submitted that the instant writ petition is premature, inasmuch as, the petitioner has approached this Court challenging the show cause notice for which reply has already been submitted by him and the proceedings are pending before the Assessing Authority, who shall after considering all the material on record collected during the proceedings under Section 132 as well as reply submitted by the petitioner in response to the notice under Section 153A of the Income Tax Act would pass appropriate order in accordance with law.

The main apprehension of the petitioner at this stage is that the income which has been disclosed under the PMGKY, may also be included as total income while making the assessment of the aforesaid block assessments as mentioned in the notices issued under Section 153A of the Income Tax Act.

The petitioner has relied upon clauses 199I and 199J of the PMGKY which are identical and similar to the Clauses 188 and 189 of the Income Declaration Scheme 2016 which is being reproduced here under:- “188. Undisclosed income declared not to be included in total income- The amount of undisclosed income declared in accordance with section 183 shall not be included in the

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