Validity of Form 3 issued u/s 5 of the Direct Tax Vivad Se Vishwas Scheme, 2020 challenged in Bombay HC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.1028 OF 2021

Cooperative Rabobank U A,
20th Floor, Tower A,
Peninsula Business Park,
Senapati Bapat Marg,
Lower Parel (West),
Mumbai – 400 013. … Petitioner

Versus

1. Commissioner of Income Tax (IT),
Mumbai-2, having his offce at
17th Floor, Air India Building,
Nariman Point, Mumbai – 400 021.

2. Union of India
Through the Secretary,
Department of Finance,
Ministry of Finance,
Government of India,
North Block, New Delhi-110. … Respondents
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Mr. Percy Pardiwalla, Senior Advocate i/by Mr. Atul Jasani,
Advocates for Petitioner.
Ms.S.V. Bharucha, Advocate for Respondents.
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CORAM : SUNIL P. DESHMUKH AND
 ABHAY AHUJA, JJ.
 
RESERVED ON : 24TH JUNE, 2021.
 PRONOUNCED ON : 7TH JULY, 2021.

JUDGMENT : (PER ABHAY AHUJA, J.)

1. By this Petition fled under Article 226 of the Constitution of India, 1950, Petitioner is challenging the validity of Form-3, dated 28th January, 2021 and 26th March, 2021 issued under Section 5 of the Direct Tax Vivad Se Vishwas Scheme, 2020 (the “DTVSV Act”) by the Designated Authority for Assessment Year 2002-2003.

2. Petitioner is a bank established in the Netherlands and it is a part of the Rabobank Group worldwide. It is submitted that  Petitioner is a regular assessee under the Income Tax Act, 1961 (the “IT Act”).

3. Petitioner had fled a Return of Income on 31st March, 2003 declaring nil income. The Assessment Order was passed on 28th March, 2005 assessing business profts attributable to permanent establishment (PE) at Rs.31,25,060/-. Being aggrieved by the said order, an appeal was fled before the Commissioner of Income Tax (Appeals) [“CIT(A)”] on 28th April, 2005. The CIT(A), by its order dated 15th May, 2006 deleted the addition, holding that Petitioner does not have a PE in India. Thereafter, the assessing offcer fled Appeal before the Tribunal on 11th August, 2006. The Tribunal, by its order dated 1st April, 2015, restored the issue to the fle of the assessing offcer. Against the said order, Petitioner fled an Appeal before this Court on 23rd September, 2015 under Section 260A of the IT Act. Petitioner also fled Miscellaneous Application before the Tribunal, which came to be rejected by an order dated 21st August, 2018. Thereafter, on 29th August, 2018, this Court in Income Tax Appeal No.1198 of 2015 with Income Tax Appeal No.260 of 2016 with Income Tax Appeal No.264 of 2016 passed an order setting aside both the orders of the Tribunal, viz., the order dated 1st April, 2015 restoring the issue to the fle of the assessing offcer as well as the order dated 21st August, 2018 dismissing the Miscellaneous Application fled by Petitioner. The High Court directed the Tribunal to decide the matter afresh. The following paragraphs of the order of this Court are relevant and are quoted as under :-

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