Can I go to the High Court now, before filing my Vivad se Vishwas declaration, because I am confident the department will reject it?
No. The Bombay High Court found no good ground to entertain a writ petition filed on the apprehension that a declaration, if filed, may be rejected, and held the petition premature. It dismissed the petition, leaving it open to the petitioner to file a declaration under the scheme as per law if so advised.
Decided by the High Court (Ujjal Bhuyan J and Abhay Ahuja J) on 2020-12-16, reported as Direct Tax Vivad se Vishwas Act, 2020; Writ Petition (St.) No.97672 of 2020 (Bombay High Court). It bears on section DTVSV 2020 of the Income Tax Act 1961, in Appeals matters.
This is a short but real Revenue-side limit on the writ jurisdiction in scheme matters, and it explains the shape of every successful case in this area: the taxpayer wins after a Form 1 has actually been rejected, or a Form 3 actually issued on a wrong footing, and not before. The petition here even challenged the constitutionality of a provision and sought a mandamus to re-characterise a payment, and none of that survived the absence of a filed declaration. The practical consequence is a timing one: a declarant who fears rejection should file, take the rejection, and then move — as Shyam Sunder Sethi, Prayas Buildwell and Ghanshyam Dalmia all did — rather than seeking an advance ruling from the Court. The corresponding risk is the last date, so the declaration must go in early enough to leave room for the writ.
Binding within that High Court's jurisdiction. Persuasive elsewhere.
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The petitioner filed a writ petition under Article 226 seeking, among other reliefs, a declaration that 'section 191 of the scheme' was unconstitutional as discriminatory and violative of Article 14, quashing of a letter of the third respondent dated 13 October 2020, a mandamus to change the major and minor accounting heads in respect of the full amount of a declaration it had made on 30 September 2016, a direction to adjust that amount against the tax liability arising under the Vivad se Vishwas Scheme, 2020 or in the alternative to refund Rs 82,33,874 with interest, and an injunction restraining the respondents from including the income disclosed in that declaration in its total income for AY 2016-17. On a query from the Court, counsel for the petitioner stated that the petitioner had not yet filed any declaration under the Vivad se Vishwas Scheme, 2020, and that the petition had been filed on the apprehension that a declaration, if filed, might be rejected.
The writ petition was dismissed, subject to liberty to the petitioner to file a declaration under the scheme as per law if so advised (paras 5 and 6). There was no good ground or reason to entertain the petition at that stage, the Court taking the view that it was premature (para 4).
The Court put a direct question to counsel and was told that no declaration had yet been filed under the 2020 Act and that the petition rested on an apprehension that a declaration, if made, might be rejected (para 3). On that footing there was nothing to adjudicate: the challenge, the mandamus and the alternative claim for refund all depended on a decision the designated authority had not yet been asked to make. The Court accordingly declined to entertain the petition and dismissed it while preserving the petitioner's liberty to file a declaration in accordance with law (paras 4 to 6).
We find no good ground/ reason to entertain the writ petition at this stage.
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Handle my notice → Ask a CA on WhatsAppNo. The Bombay High Court found no good ground to entertain a writ petition filed on the apprehension that a declaration, if filed, may be rejected, and held the petition premature. It dismissed the petition, leaving it open to the petitioner to file a declaration under the scheme as per law if so advised. This was decided by the High Court (Ujjal Bhuyan J and Abhay Ahuja J) and bears on section DTVSV 2020 of the Income Tax Act 1961. It is reported as Direct Tax Vivad se Vishwas Act, 2020; Writ Petition (St.) No.97672 of 2020 (Bombay High Court). This is a short but real Revenue-side limit on the writ jurisdiction in scheme matters, and it explains the shape of every successful case in this area: the taxpayer wins after a Form 1 has actually been rejected, or a Form 3 actually issued on a wrong footing, and not before. The petition here even challenged the constitutionality of a provision and sought a mandamus to re-characterise a payment, and none of that survived the absence of a filed declaration. The practical consequence is a timing one: a declarant who fears rejection should file, take the rejection, and then move — as Shyam Sunder Sethi, Prayas Buildwell and Ghanshyam Dalmia all did — rather than seeking an advance ruling from the Court. The corresponding risk is the last date, so the declaration must go in early enough to leave room for the writ. If it applies to you, the first step is this: File the declaration first and let the designated authority decide; a writ against an anticipated rejection will not be entertained.
The petitioner filed a writ petition under Article 226 seeking, among other reliefs, a declaration that 'section 191 of the scheme' was unconstitutional as discriminatory and violative of Article 14, quashing of a letter of the third respondent dated 13 October 2020, a mandamus to change the major and minor accounting heads in respect of the full amount of a declaration it had made on 30 September 2016, a direction to adjust that amount against the tax liability arising under the Vivad se Vishwas Scheme, 2020 or in the alternative to refund Rs 82,33,874 with interest, and an injunction restraining the respondents from including the income disclosed in that declaration in its total income for AY 2016-17. On a query from the Court, counsel for the petitioner stated that the petitioner had not yet filed any declaration under the Vivad se Vishwas Scheme, 2020, and that the petition had been filed on the apprehension that a declaration, if filed, might be rejected. The matter was decided on 2020-12-16 by the High Court (Ujjal Bhuyan J and Abhay Ahuja J). On those facts the High Court held as follows. The writ petition was dismissed, subject to liberty to the petitioner to file a declaration under the scheme as per law if so advised (paras 5 and 6). There was no good ground or reason to entertain the petition at that stage, the Court taking the view that it was premature (para 4).
The Court put a direct question to counsel and was told that no declaration had yet been filed under the 2020 Act and that the petition rested on an apprehension that a declaration, if made, might be rejected (para 3). On that footing there was nothing to adjudicate: the challenge, the mandamus and the alternative claim for refund all depended on a decision the designated authority had not yet been asked to make. The Court accordingly declined to entertain the petition and dismissed it while preserving the petitioner's liberty to file a declaration in accordance with law (paras 4 to 6). In the words reproduced by the source cited on this page: "We find no good ground/ reason to entertain the writ petition at this stage."
It was decided by the High Court on 2020-12-16 and is reported as Direct Tax Vivad se Vishwas Act, 2020; Writ Petition (St.) No.97672 of 2020 (Bombay High Court). Binding within that High Court's jurisdiction. Persuasive elsewhere. A High Court decision binds the assessing officer, the Commissioner (Appeals) and the Income Tax Appellate Tribunal within that state, and is persuasive elsewhere. If your assessment is in a different jurisdiction, check whether your own High Court has taken the same view before relying on it. On section DTVSV 2020, the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It helps the department, and it appears in this library for that reason — you need to know what the Assessing Officer will cite against you. The writ petition was dismissed, subject to liberty to the petitioner to file a declaration under the scheme as per law if so advised (paras 5 and 6). There was no good ground or reason to entertain the petition at that stage, the Court taking the view that it was premature (para 4). It arises in Appeals matters, on section DTVSV 2020 of the Income Tax Act 1961, and was decided by Ujjal Bhuyan J and Abhay Ahuja J. Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Build in time before the last date for filing declarations, so that a rejection can be challenged while the window is still open — the Courts have protected the original filing date where a petition succeeded. If the grievance is that a payment already made under an earlier scheme should be adjusted against the scheme liability, raise it in the declaration and in correspondence with the authority so that the refusal is on record. Preserve the constitutional challenge for the petition filed after rejection; it will not be heard in the abstract. Note the express liberty the Court gave — dismissal on prematurity is not a bar to filing the declaration and coming back.
Validity check could not be completed. Validity check could not be completed. No later treatment was searched for or located, and it is not known whether the petitioner filed a declaration or returned to the Court. The order decides no question of construction under the 2020 Act; its value is confined to the timing of a writ, and it should not be cited for anything more. No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
The order is brief and its background is not set out. Prayer (a)(i) asks the Court to declare 'section 191 of the scheme' unconstitutional; the order does not identify which scheme or enactment that section belongs to, and it is not a provision of the Direct Tax Vivad se Vishwas Act, 2020 as reproduced in the judgments read this pass. The declaration referred to in prayer (b)(i) is dated 30 September 2016 and the relief sought is to have its major and minor accounting heads changed and the amount of Rs 82,33,874 adjusted against the Vivad se Vishwas liability, which suggests an earlier disclosure scheme, but the order does not say so and nothing has been assumed. The two routes read differ trivially: the plain document page prints 'premature' at para 4 where the print view prints 'pre-mature', so the quoted sentence has been taken from the preceding sentence, which is identical on both. The order runs to para 7 and the first paragraph is unnumbered. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
The writ petition was dismissed, subject to liberty to the petitioner to file a declaration under the scheme as per law if so advised (paras 5 and 6). There was no good ground or reason to entertain the petition at that stage, the Court taking the view that it was premature (para 4).
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