{"id":51858,"date":"2007-05-17T00:00:00","date_gmt":"2007-05-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tanna-and-modi-vs-c-i-t-mumbai-xxv-and-ors-on-17-may-2007"},"modified":"2015-01-26T00:29:42","modified_gmt":"2015-01-25T18:59:42","slug":"tanna-and-modi-vs-c-i-t-mumbai-xxv-and-ors-on-17-may-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tanna-and-modi-vs-c-i-t-mumbai-xxv-and-ors-on-17-may-2007","title":{"rendered":"Tanna And Modi vs C.I.T. Mumbai Xxv And Ors on 17 May, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Tanna And Modi vs C.I.T. Mumbai Xxv And Ors on 17 May, 2007<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, P.K. Balasubramanyan<\/div>\n
           CASE NO.:\nAppeal (civil)  2696 of 2007\n\nPETITIONER:\nTanna and Modi\n\nRESPONDENT:\nC.I.T. Mumbai XXV and Ors.\n\nDATE OF JUDGMENT: 17\/05\/2007\n\nBENCH:\nS.B. Sinha & P.K. Balasubramanyan\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
S.B. SINHA, J.\n<\/p>\n
1. Leave granted.\n<\/p>\n
2. Interpretation and application of the provisions of Voluntary Disclosure
\nof Income Scheme falls for our consideration in this appeal which arises
\nout of the judgment dated 19.7.2005 passed by the High Court of Judicature
\nat Bombay in Writ Petition (Civil) No. 918 of 2005 dismissing the writ
\npetition filed by the appellant herein, questioning the correctness of an
\nOrder dated 13.5.2004 passed by the Commissioner of Income Tax, Mumbai City
\nXXV refusing to entertain an application under voluntary disclosure scheme.\n<\/p>\n
3. Appellant is a firm registered under the Indian Partnership Act, 1932.
\nIt is also registered under the Income Tax Act, 1961. A search and seizure
\nproceeding was conducted against three individuals Smt. Kuntalaxmi Tanna,
\nShri Kashyap Tanna and Shri Kauntey Tanna. Office of the appellant was also
\nsituate at the same premises where the search and seizure was conducted. A
\nvoluntary disclosure by the firm was made in respect of the assessment year
\n1994-1995 for a sum of Rs. 2,45,420\/- for the assessment year 1994-1995 and
\nRs. 2,05,470\/- for the assessment year 1995-1996 under the Voluntary
\nDisclosure of the Income Scheme, 1997.\n<\/p>\n
4. By an Order dated 30.12.1997, the said declaration was accepted.\n<\/p>\n
5. Requisite amount of tax was also paid. A certificate was issued by the
\nCommissioner of Income Tax having satisfied himself with the various
\nrequirements of the Scheme. Additions made in respect of the assessment
\nyears 1994-1995 and 1995-1996 were directed to be deleted by the
\nCommissioner of Income Tax on 29.1.2003 and 24.2.2003 respectively opining
\nthat the firm became entitled to the immunity being inherent in the Scheme.\n<\/p>\n
6. However, an Order was passed by the Commissioner of Income Tax on
\n8.4.2003 declaring the said certificate to be null and void under Section
\n64(2) of the Voluntary Disclosure of Income Scheme, 1997 stating;\n<\/p>\n
“Subsequent to the filing of declaration and issue of certificate u\/s.
\n68(2) of the VDIS 97, it has been brought out that search & seizure action
\nwas carried out in respect of the assessee on 18\/4\/1997 relating to the
\nassets declared by the assessee in the VDIS application filed on 30\/12\/1997
\nand this fact was not disclosed by the assessee while filing the VDIS
\ndeclaration on 30\/12\/1997. As the assets declared by the assessee under
\nVDIS’ 97 had been discovered earlier by the Income Tax Department during
\nthe course of Search & Seizure action, the VDIS’97 certificate issued u\/s.
\n68(2) of the VDIS’97 and as such, the certificate u\/s. 68(2) of the VDIS’97
\ndated 10\/3\/98 issued by the Commissioner of Income Tax (Central) II is held
\nto be null and void.”\n<\/p>\n
7. Appellant contended that the said Order having been passed without
\ncomplying with the principles of natural justice and behind its back was
\nillegal. A Writ Petition was filed before the Bombay High Court and by an
\nOrder dated 4.2.2004, the matter was directed to be considered de novo by
\nthe Commissioner of Income Tax, whereupon, again by reason of an Order
\ndated 13.5.2004, the Commissioner of Income Tax inter alia opined that as a
\npartner is an intrinsic part of a firm, only because no specific search
\nwarrant was issued in the name of the assessee firm, the same would not
\nentitle it to take benefit of the 1997 Scheme.\n<\/p>\n
It was held;\n<\/p>\n
“The partner of the firm, Mr. Kauntey M. Tanna was searched and he answered
\nthe questions asked of him, as partner of this concern, admitting to the
\nreceipt of on money. The figures available from the diaries found at the
\ntime of the search show that for F.Y., 93-94, relevant to A.Y. 94-95, total
\non money received was Rs. 16,36,128\/- as per diary No. A-2 written by Shri
\nKauntey M. Tanna. It is exactly this figures which has been offered by the
\nassessee as the gross receipts of on money under the V.D.I.S. declaration.
\nTherefore, the assessee’s claim before the Assessing Officer that the diary
\nand the loose papers were in no way connected with him was patently
\nincorrect. Similarly for the A.Y. 95-96 the diaries found during the course
\nof the search form the basis of the declaration made by the assessee firm.\n<\/p>\n
It is pertinent to note that during the course of the search, the partner,
\nShri Kuntey M. Tanna, had admitted to the on money received by the assessee
\nfirms on the basis of the seized documents referred to in the assessment
\norder. It is only subsequently that a retraction was made. The assessee had
\ndenied at the time of the assessment proceedings only (and not at the time
\nof search proceedings) that the loose papers relied upon by the Assessing
\nOfficer written in the partner’s hand, did not belong to them and yet it is
\nthese papers and loose paper which form the basis of the V.D.I.S.
\ndeclaration made by them. Therefore, the assessee has falsely claimed
\nbefore the assessing officer that the papers did not relate to them.\n<\/p>\n
Moreover, from the facts given above it is very clear that the income
\ndisclosed by the assessee firm under the V.D.I.S. 97 was already in the
\nknowledge of the Department as a result of the search and seizure action
\nand that the assessee deliberately with held this fact from the C.I.T.,
\nCentral II at the time of filing the V.D.I.S. declaration.\n<\/p>\n
The assessee has sought to escape through a procedural loophole by
\nemphasizing that no search warrant was executed in the name of   M\/s. Tanna
\nand Modi and therefore there was no search and seizure action in the case
\nof the firm, and hence the declaration made by it under the V.D.I.S. was
\nvalid.”\n<\/p>\n
It was further held;\n<\/p>\n
“…The V.D.I.S. 97 laid down certain parameters which were to be fulfilled
\nbefore the assessee can take benefit of the immunity given by the scheme.
\nThe broad conditions were that the assessee should make a full and true
\ndisclosure and that the information should not be in the prior knowledge of
\nthe Department. Neither, of these two conditions have been met by the
\nassessee in this particular case. At the time of the V.D.I.S. declaration
\nthe assessee should have informed the C.I.T. Central II that there was a
\nsearch and seizure operation and that the document on which basis the
\ndeclaration was being made was seized at the time of the search operation.
\nTo the contrary the assessee has deliberately tried to mislead the C.I.T.
\nCentral II by stating that the V.D.I.S. declaration was on the basis of the
\ndecision of the Hon’ble I.T.A.T. The assessee failed to mention in his
\ndeclaration that the information of the on money taken by it on the sale of
\nflat\/shop was already with the Department as a result of the search
\nproceedings, therefore the assessee failed to make a full and true
\ndisclosure as envisaged in the V.D.I.S. 97.\n<\/p>\n
Moreover, there is no denying that the information relating to the on money
\nreceived by the assessee firm was available with the Department prior to
\nthe V.D.I.S. 97 declaration made by him and that in fact the Departments
\nhad been questioning the assessee firm and asking them to explain exactly
\nthese entries. Instead of explaining these entries, the assessee firm
\ndenied that the documents found belonged to them thereby attempting to
\nsubvert the due process of law and deny its genuine tax liability as well
\nas to save itself from further proceedings that it was liable to.”\n<\/p>\n
8. Writ Petition filed thereagainst by the appellant has been dismissed by
\nreason of the impugned judgment.\n<\/p>\n
9. The learned counsel appearing on behalf of the appellant inter alia
\nwould submit that:\n<\/p>\n
(i)\tThe order passed under Section 64(2) issuing a valid certificate
\nissued by the Commissioner of Income Tax could not have been revoked as by
\nreason thereof full immunity had been granted to the declarant under the
\nScheme<\/p>\n
(ii)\tOnce a declaration is made under the Scheme, there being no search
\nand seizure on its premises nor any warrant having been issued, the
\nproceedings could not have been initiated for revoking the certificate by
\nthe Commissioner of Income Tax.\n<\/p>\n
(iii)\tA firm for the purpose of applicability of the provisions of the
\nIncome Tax Act is a distinct and separate entity vis-a-vis its partners and
\nin the event if it is held that an action on the part of a partner would
\nnot bind the firm, the impugned orders cannot be sustained.\n<\/p>\n
(iv)\tIn any event the partner having retracted his admission, the
\nquestion of taking any action on the basis thereof would not arise.\n<\/p>\n
(v)\tThe circulars by the Central Board of Direct Taxes binding on the
\ndepartment where the search warrant having been issued and executed in the
\nname of an individual and the fact that he was a partner of the firm being
\nknown to the department, no further information was necessary to be
\nsupplied.\n<\/p>\n
10. Mr. Vikas Singh, learned Additional Solicitor General appearing on
\nbehalf of the respondent, on the other hand, would submit that in this
\ncase, the parties not only had a common office but what was declared by the
\npartner of the firm was the very same amount representing the income of the
\nfirm and even the source thereof was the same and, thus, a clear case of
\nmisrepresentation and unfair disclosure has been made out.\n<\/p>\n
11. A Scheme known as Voluntary Disclosure of Income Scheme, 1997 was made
\nby the Parliament under the Finance Act of 1997.\n<\/p>\n
12. Relevant provisions of the said Scheme, before we embark upon the rival
\ncontentions of the parties as noticed herein before, may be noticed by us:\n<\/p>\n
Section 63(a) – “declarant” means a person making the declaration under
\nsub-section (1) of section 64;\n<\/p>\n
Section 64(1) – Subject to the provisions of this Scheme, where any person
\nmakes, on or after the date of commencement of this Scheme but on or before
\nthe 31st day of December, 1997, a declaration in accordance with the
\nprovisions of section 65 in respect of any income chargeable to tax under
\nthe Income-tax Act for any assessment year-\n<\/p>\n
(a)\tfor which he has failed to furnish a return under section 139 of
\nthe Income -tax Act;\n<\/p>\n
(b)\twhich he has failed to disclose in a return of income furnished by
\nhim under the Income-tax Act before the date of commencement of this
\nScheme.\n<\/p>\n
(c)\twhich has escaped assessment by reason of the omission or failure
\non the part of such person to make a return under the Income-tax Act or to
\ndisclose fully and truly all material facts necessary for his assessment or
\notherwise.\n<\/p>\n
then, notwithstanding anything contained in the Income-tax Act or in any
\nFinance Act, income-tax shall be charged in respect of the income so
\ndeclared (such income being hereinafter referred to as the voluntarily
\ndisclosed income) at the rates specified hereunder, namely –\n<\/p>\n
\t(i) in the case of a declarant, being a company or a firm, at the
\n\trate of 35 per cent of the voluntarily disclosed income;\n<\/p>\n
\t(ii) in the case of a declarant, being a person other than a
\n\tcompany or a firm, at the rate of 30 per cent of the voluntarily
\n\tdisclosed income.\n<\/p>\n
(2) Nothing contained in sub-section (1) shall apply in relation to –\n<\/p>\n
\t(i) the income assessable for any assessment year for which a
\n\tnotice under section 142 or section 148 of the Income-tax Act has
\n\tbeen served upon such person and the return has not been furnished
\n\tbefore the commencement of this Scheme;\n<\/p>\n
\t(ii) the income in respect of the previous year in which a search
\n\tunder section 132 of the Income-tax Act was initiated or
\n\trequisition under section 132A of the Income-tax Act was made, or
\n\tsurvey under section 133A of the Income-tax Act was carried out or
\n\tin respect of any earlier previous year.\n<\/p>\n
68(1) – The amount of the voluntarily disclosed income shall not be
\nincluded in the total income of the declarant for any assessment year under
\nthe Income-tax Act, if the following conditions are fulfilled, namely :-\n<\/p>\n
\t(i) the declarant credits such amount in the books of account, if
\n\tany, maintained by him for any source of income or in any other
\n\trecord, and intimates the credit so made to the Assessing Officer;
\n\tand<\/p>\n
\t(ii) the income-tax in respect of the voluntarily disclosed income
\n\tis paid by the declarant within the time specified in section 66 or\n<\/p>\n
\t67.<\/p>\n
13. The Central Board of Direct Taxes in exercise of its power conferred
\nupon it under sub-Sections (1) and (2) of Section 71 of the Finance Act,
\n1997 made rules known as Voluntary Disclosure of Income Rules, 1997 (the
\nRules).\n<\/p>\n
Rule 10 of the Rules reads as under:-\n<\/p>\n
“10. The particulars furnished by a declarant shall be kept secret and
\nshall be treated as confidential. No court or any other authority shall be
\nentitled to require any officer of the Income-tax Department or the
\ndeclarant himself to produce before it any such declaration or to give
\nevidence before it in this regard. Further, nothing contained in any
\ndeclaration shall be admissible as evidence against the declarant for the
\npurpose of any proceeding relating to imposition of penalty or launching of
\nprosecution under the Income-tax Act, the Wealth-tax Act, the Foreign
\nExchange Regulation Act, 1975, or the Companies Act, 1956.\n<\/p>\n
14. It appears that as there remained certain doubts in regard to the
\napplicability of the said Scheme, inter alia in relation to the partners of
\na firm vis–vis firm , some questions were posed which were sought to be
\nanswered by issuance of a circular letter No. 754 dated 10.6.1997 by CBDT.\n<\/p>\n
Question No. 5 :\tIf the firm had concealed income, can the partners
\nfile, declaration in respect of such concealed income?\n<\/p>\n
Answer   :\tThe declaration will be by the firm verified by the
\nmanaging partner. If there is no managing partner, then by one of the
\npartners. The partners need not make declaration regarding their respective
\nshare of income.\n<\/p>\n
Question No. 7 :\tWhere a private limited company has not filed
\nreturn of income for assessment year 1990-91 in respect of its income as
\nper books of account, can it file a declaration under the scheme and pay
\ntax at 35 per cent?\n<\/p>\n
Answer   :\tYes<\/p>\n
Question No. 13 :\tImmunity should also be granted to directors of a
\ncompany, partners of the firm and members of the AOP which makes a
\ndeclaration under the scheme.\n<\/p>\n
Answer    :\tAs far as firms and AOPs are concerned, it is enough if
\nfirm and AOPs declare. There is no need for partners and members to declare
\nseparately in respect of the income declared by the firm or AOP. In respect
\nof disclosure by the company, no director of the company shall be
\nprosecuted.\n<\/p>\n
15. There cannot be any doubt that under the Income Tax Act, a firm whether
\nregistered or not under the provision of the Indian Partnership Act is
\ntreated as a separate assessee. An Order of assessment is passed on the
\nbasis of income derived by a person. His total income may consist of his
\nshare of profit out of the income of the firm.\n<\/p>\n
16. It may be true that in that view of the matter, assessment of a firm
\nand assessment of a partner would stand on different footings.\n<\/p>\n
17. For the purpose of the application of the provisions of the Income Tax
\nAct, 1961 and the Voluntary Disclosure of Income Scheme, 1997, a firm and
\nits partner may have to be treated differently as a partner of a firm may
\nhave income other than his share of profits from the firm.\n<\/p>\n
18. We would also accept and particularly having regard to a large number
\nof decisions of this Court operating in the field that executive
\nconstruction is ordinarily allowed to prevail and shall be binding on the
\nauthorities under the Act. A’ fortiori, clarificatory circulars issued by
\nthe Central Board of Direct Taxes may also be taken into consideration for
\nthe purpose of construction of the statute.\n<\/p>\n
19. It is, however, also well settled that fraud vitiates all solemn acts.
\nFraudulent actions shall render the act a nullity. It would be non est in
\nthe eyes of law. Acts of a firm vis–vis its partners, however, as is
\nunderstood in common parlance or in terms of the provisions of the
\nPartnership Act, 1932, in a case of this nature, may have to be taken into
\nconsideration for judging the validity of action. Under the Partnership
\nAct, a partner represents a firm. He has an implied authority in terms of
\nSection 19 thereof and, thus, any action taken by a partner of a firm
\nvis–vis. the firm, unless otherwise specific binds the firm itself. It is
\none thing to say that for the purpose of invoking the provisions of the
\nIndian Income Tax Act and other taxation laws of a firm and its partners
\nare treated to be separate entities but while construing a statute
\ninvolving immunity from certain penal actions, in our opinion, the
\nprovisions thereof should not ordinarily be judged on the touchstone of the
\nprovisions of the 1961 Act, only because the 1997 Scheme has a direct nexus
\ntherewith.\n<\/p>\n
20. It may be necessary for the aforementioned purpose to bear in mind that
\nthe immunity granted pursuant to acceptance of a declaration made under the
\nvoluntary taxation scheme or Kar Vivad Samadhan Scheme, 1998 does not lead
\nto a total immunity. Immunity granted under the Scheme has its own
\nlimitations. The Scheme must be applied only in the event the conditions
\nprecedent laid down therefor are applicable. See State, CBI v. Sashi
\nBalasubramanian & Anr.,<\/a> [2006] 10 SCALE 541 and Alpesh Navinchandra Shah v.
\nState of Maharashtra and Ors.,<\/a> [2007] 2 SCC 777.\n<\/p>\n
21. A raid was conducted in the premises of the firm. Search warrant might
\nhave been issued in the name of a partner of the firm. The partner made
\ncertain statements. The search revealed some undisclosed income. The firm
\nhas a separate legal entity, it could have made a declaration, but it was
\ndone in respect of the same amount regarding the partner of the firm made
\ndisclosures. What would be the effect of his subsequent retraction is not a
\nmatter which we are required to deal with herein. It is one thing to say
\nthat when a firm has concealed income, each partner need not make a
\ndeclaration but it would be another thing to say that when a search has
\nbeen made on the premises of the firm and the books of accounts of the firm
\nare inspected, on the strength of a search warrant issued in the name of
\none of the partners thereof, a declaration can be made by the firm so as to
\ncover the loopholes. In a case where sub-section (2) of Section 64 is
\napplied, sub-section (1) thereof would not apply inasmuch as it starts with
\nthe term “nothing contained” in sub-section (1) shall apply in relation to.
\nWhat are the conditions which would make sub-section (1) of Section 64
\ninapplicable is the income assessable for any assessment year for which a
\nnotice under Section 142 or 148 of the Income Tax Act has been served upon
\nsuch person and the return has not been furnished before commencement of
\nthe Scheme and upon strict construction, it is possible to argue that the
\nword “such person” must relate to that declarant which being a firm would
\nnot include within its purview its partners. But, in a case of this nature
\nwhere fraud is alleged, we cannot be oblivious of the fact that each firm
\nacts through its partner. A firm is the conglomeration of its partners, and
\nis not a juristic person. In the instant case, the purported disclosure
\nmade by the firm relates to the same amount which has been disclosed by the
\npartner. Even the source of income was found to be the same. As the income
\nof a firm vis–vis its partners have a direct co-relation, in our opinion,
\nwhile construing a statute granting immunity, it should not be construed in
\nsuch a manner so as to frustrate its object. Keeping in view the purport
\nand object which the 1997 Scheme seeks to achieve, we are of the opinion
\nthat in the place of literal interpretation, the rule of purposive
\nconstruction should be applied.\n<\/p>\n
22. In Francis Bennion’s Statutory Interpretation, purposive construction
\nhas been described in the following manner:\n<\/p>\n
“A purposive construction of an enactment is one which gives effect to the
\nlegislative purpose by-\n<\/p>\n
(a) following the literal meaning of the enactment where that meaning is in
\naccordance with the legislative purpose (in this Code called a purposive-
\nand-literal construction), or<\/p>\n
(b) applying a strained meaning where the literal meaning is not in
\naccordance with the legislative purpose (in the Code called a purposive-
\nand-strained construction).”\n<\/p>\n
[See also Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action
\nGroup and Ors.,<\/a> [2006] 3 SCC 434 and National Insurance Co. Ltd. v. Laxmi
\nNarain Dhut,<\/a> [2007] 4 SCALE 36.\n<\/p>\n
23. In any event, it is not a fit case where we should invoke our extra-
\nordinary jurisdiction under Article 136 of the Constitution of India. It is
\nnow well settled that this Court does not exercise its jurisdiction only
\nbecause it is lawful to do so. It, for the purpose of doing complete
\njustice to the parties, not only may or may not interfere with the impugned
\njudgment but also issue directions for the purpose of doing complete
\njustice to the parties in terms of Article 142 of the Constitution of
\nIndia.\n<\/p>\n
24. Applying the aforementioned principles, and particularly having regard
\nto the nature of fraud practiced upon the statutory authorities, we are of
\nthe opinion that no case has been made out for invoking our jurisdiction
\nunder Article 136 of the Constitution of India. The appeal is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Tanna And Modi vs C.I.T. Mumbai Xxv And Ors on 17 May, 2007 Author: S Sinha Bench: S.B. Sinha, P.K. Balasubramanyan CASE NO.: Appeal (civil) 2696 of 2007 PETITIONER: Tanna and Modi RESPONDENT: C.I.T. Mumbai XXV and Ors. DATE OF JUDGMENT: 17\/05\/2007 BENCH: S.B. Sinha & P.K. Balasubramanyan JUDGMENT: JUDGMENT S.B. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-51858","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nTanna And Modi vs C.I.T. 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