M/s Hillways Construction Company Private Limited V. Income Tax Department AND OTHERS

WPMS/3198/2016

AI Insights

The case involves M/s Hillways Construction Company Private Limited, which sought a review of a previous court decision that dismissed their writ petition concerning the denial of benefits under the 'Income Declaration Scheme, 2016' by the Income Tax Department. The initial dismissal was based on the fact that the company was under prosecution for offenses under the Indian Penal Code, specifically under Chapter IX and Chapter XVII, which disqualified them from the scheme. The petitioner argued that certain facts were not considered in the original decision, but the court found these arguments insufficient to meet the stringent requirements for a review under the applicable legal provisions.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 672436 (HC-UTTARAKHAND)
• Appeal Type: Others
• Pronouncement Date: 24-07-2018
• Assessment Year: misc
• Laws Referred To: Finance Act, 2016, Income Declaration Scheme, 2016, Indian Penal Code, Prevention of Corruption Act, 1988
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: H M BHATIA
• Assessee Lawyers: GAUTAM JAIN; A K SHARMA
• Keywords: Delay condonation; Income Declaration Scheme; Prosecution; Review Application; Undisclosed assets
• Section: 468; 120-B; 120-B; 420; 471

Judgement Text

" IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL MCC No. 929 of 2018 (Review Application) CLMA No.10553 of 2018 (Delay Condonation Application in Review) IN Writ Petition (M/S) No. 3198 of 2016 M/s Hillways Construction Company Private Limited ……….Petitioner Versus Income Tax Department and others …Respondents Present:- Mr. Gautam Jain, Advocate with Mr. A.K. Sharma, Advocate for the petitioner. Mr. H.M. Bhatia, Advocate for the respondents. Hon’ble Sudhanshu Dhulia, J. (Oral) Learned counsel for the petitioner has moved a Review application along with a Delay Condonation application and has prayed that delay in filing the review application may be condoned. 2. Grounds mentioned in the affidavit appear to be bona fide and sufficient for condonation of delay in filing the review application. The Delay Condonation application is allowed. Delay is condoned. 3. Heard learned counsel for the parties on the review application. 4. This writ petition was dismissed by this Court vide judgment and order dated 02.05.2018 by passing the following order:- “Under the Finance Act, 2016, the Government of India came with a scheme known as “Income Declaration Scheme, 2016”, which gave a chance to an assessee to declare 2 the so far undisclosed assets/income. One of the important conditions for eligibility for a person to avail this scheme was that the Scheme shall not apply in relation to prosecution of any offence punishable under Chapter IX or Chapter XVII of the Indian Penal Code, the Narcotic Drugs and Psychotropic Substances Act, 1985, the Unlawful Activities (Prevention) Act, 1967 and the Prevention of Corruption Act, 1988. The petitioner, in any case, claimed benefit under the said Scheme and sought a declaration, which by an order of the Income Tax Authorities dated 24.10.2016 has been denied to the petitioner on ground that CBI has filed prosecution under the Prevention of Corruption Act against the promoters of the company known as Hillways Construction Company Private Limited. According to the petitioner, however, the matter relates to three plots which were purchased by Hillways Engineering Company Private Limited in the year 2009. Hillways Engineering Company Private Limited and Hillway Construction Private Company Limited got amalgamated on 01.04.2015. Admittedly the promoters of both the companies are common. According to the petitioner, though in a criminal case after investigation the CBI has filed the chargesheet against the petitioner under Sections 120-B, 420, 468 & 471 of I.P.C., but the charges have been framed by the Special Judge, Anti Corruption, CBI against the petitioner only under Sections 120-B, 420, 468 and 471 I.P.C. and not under the provisions of Prevention of Corruption Act. Admittedly Section 420 of IPC is an offence which comes under Chapter XVII of the IPC. The Scheme, of which the petitioner is seeking benefit, categorically stipulates that in case prosecution is going on against a person for any offence punishable under Chapter IX or Chapter XVII of the IPC, he is not liable to get benefit of the Scheme. Although the order dated 24.10.2016 does not refer to prosecution under Section 420 of IPC but of Corruption of Prevention Act, but since prosecution is going on against the petitioner for an offence which 3 comes under Chapter XVII of the IPC, petitioner is not liable to be granted benefit of the said Scheme. Consequently, writ petition fails and is hereby dismissed.” 5. Against the order dated 02.05.2018, the petitioner preferred a special appeal before a Division Bench of this Court being SPA No.405 of 2018, which was dismissed by the Division Bench of this Court by passing the following order:- “Mr. Gautam Jain and Mr. A.K. Sharma, Advocates for the appellant. Mr. H.M. Bhatia, Advocate for the respondents. Learned counsel for the appellant is permitted to withdraw the present special appeal with liberty to file a review petition before the learned Single Judge by placing on record the circular dated 20.05.2016. Accordingly, Special Appeal is dismissed as withdrawn with liberty as above.” 6. Now a review application has been filed by the applicant/petitioner for reviewing the order dated 02.05.2018 on ground that certain facts could not be brought before this Court at the relevant time, such as, there is a scheme called “Income Declaration Scheme, 2016”, where an assessee can declare his undisclosed assets/income. This cannot be a ground for review. Under Order XLVII Rule 1 of the Code of Civil Procedure, grounds for review are very limited and such grounds are not available with the applicant/petitioner. 7. Consequently, the review application stands dismissed. (Sudhanshu Dhulia, J.) 24.07.2018 Ankit/ "