PRAKASH KRISHNA, J. - (1.) CHALLENGE in the present writ petition is the order dated 25 -2 -1999 passed by the Commissioner of Income Tax and Designated Authority, under Kar Vivad Samadhan Scheme, 1998 (hereinafter referred to as KVSS) whereby a sum of Rs. 13,75,133/ - has been determined as amount payable at the rate of 35% by the petitioner in view of declaration filed by it under KVSS. The said order has been passed under Section 90(1) of KVSS.
(2.) FACTS of the case lie in a narrow compass Raising a short controversy as to whether the amount deposited by the petitioner before the date of declaration in pursuance of the assessment order, which is subject matter of appeal, is liable to be adjusted towards the tax due first or towards the accrued interest, the present petition has been filed. The petitioner was a partnership firm till 30 -9 -1996 and it was converted into a joint stock company under part IX of the Companies Act w.e.f. 1 -10 -1996 and was incorporated under the Indian Companies Act. It returned the income for the assessment year 1994 -95, relevant to the previous year ended on 31 -3 -1994 at Rs. 27,97,650/ - and tax due thereon was Rs. 12,69,368/ - which was paid. On 31 -3 -1997, the petitioner was assessed under Section 143(3) of the Income Tax Act at taxable income of Rs. 85,56,100/ -. The said order was rectified under Section 154 of the Income Tax Act and the excess claims allowed under Sections 80H and 80I were disallowed. The income was accordingly assessed at Rs. 1,24,85,050/ - and the tax determined thereon was Rs. 55,93,302/ -. Before passing of the rectification order dated 28 -12 -1998, the petitioner had deposited a sum of Rs. 43,23,360/ -. The rectification order was challenged in appeal. During the pendency of appeal, the aforesaid KVSS was enacted by the Parliament and the petitioner filed declaration under the scheme. On the basis of the declaration furnished by the petitioner, the authority concerned has passed the impugned order holding that a sum of Rs. 13,75,133/ - is the amount payable at the rate of 35% of the disputed income i.e. 39,28,950/ -. Challenging the computation part, as contained in the impugned order, the present writ petition is at the instance of the assessee.
(3.) A counter affidavit has been filed stating that the return of income was filed on 12 -8 -1994 and not on 12 -7 -1994, that against total demand of Rs. 73,50,795/ -, the petitioner made payment by two separate challans, one for interest amounting to Rs. 17,50,291/ - and the other for tax amounting to Rs. 25,73,069/ - on 28 -4 -1997. It has been further stated that adjustment of the aforesaid amount i.e. Rs. 17,50,291/ -+Rs.25,73,069/ -=Rs. 43,23,360/ - was not towards 'tax paid' but towards 'demand paid'. In other words, in the counter affidavit, the computation part of the impugned order has been sought to be justified by giving necessary details.;