DIRECTOR GENERAL OF INCOME TAX (ADMN.) & ANR.versusM/S. GTC INDUSTRIES LTD. & ANR.

                            (2016] 4 S.C.R. I0 I0


A     DIRECTOR GENERAL OF INCOME TAX (ADMN.) & ANR.
                                      v.
                  MIS. GTC INDUSTRIES LTD. & ANR.
                       (Civil Appeal No. 5038of2016)
B                               MAY 12, 2016
                [A.K. SIKRI AND R.K. AGRAWAL, JJ.)
         Sick Industrial Companies (Special Provisions) Act, 1985 - ss.
    18(5) and 22(1) - Respondent-company declared a sick company
    by Board of Industrial and Financial Reconstruction (BIFR) -
c   Scheme for reconstruction/rehabilitation sanctioned - Certain
    income tax reliefs including the relief 'to consider waiving of interest
    and penalty' kept under the Scheme - Rehabilitation period was
    for eight years from 31.3.2003 to 31.3.2011 - In the year 2007, the
    company was discharged from the purview of the Act as it ceased to
D   be a sick undertaking on its net worth turning positive - Thereupon,
    Revenue made demand for its outstanding dues - In the meantime
    the company had sold its property in Mumbai to third parties for
    developing the same - The company filed application before the
    BIFR seeking stay of coercive action proposed to be taken by the
    Revenue - BIFR directed the revenue not to take any coercive action
E
    - Order of BIFR upheld by appellate authority - Writ petition by
    Revenue challenging the order - During pendency of the writ
    petition, company filed application seeking extension of
    rehabilitation period by another one year - Extension denied by
    BIFR andfi1rther ipheld by appellate authority- Writ petition against
F   the order dismissed as withdrm1'n - Thereafter, writ petition of the
    Revenue was dismissed - On appeal by Revenue, held: Revenue
    had the right to recover arrears of income tax after 2007 (when the
    company ceased to be a sick company) and in any case after the
    rehabilitation scheme expired - The quantum of the dues for which
    the Revenue had raised the demand, were correct - The question,
G
    as to whether it was permissible for the Revenue to include interest
    and penalty in view of the income tax reliefs granted in the scheme,
    not decided in the present appeal - Parties permitted to approach
    BIFR to seek clarification as to whether it was mandatory or
    recommendatory to waive interest and penalty.
H
                                     1010
 DIRECTOR GENERAL OF INCOME TAX (ADMN.) & ANR. v.                      1011
          MIS. GTC INDUSTRIES LTD. & ANR.

    Disposing of the appeal, the Court                                  A
     HELD: 1. The Sanctioned Rehabilitation Scheme has
outlived its life which came to an end on 31st March, 2011.
Application for extension of the Scheme filed before the Board
of Industrial and Financial Reconstruction, was dismissed. The
Appellate Authority had upheld this order of the Board. Moreover,       B
way back in the year 2007, the net worth of the Company had
turned positive and it was no more a sick Company. Thus, the
Revenue had right to recover arrears of income tax after 2007
and in any case after 31.03.2011 when the Scheme expired. [Paras
20 and 24] [1021-B-D]
                                                                        c
     2. The plea of the respondent-Company was that the demand
of Rs. 761.35 crores on account of income tax dues as made by
the Revenue was not correct and that the Revenue had included
even those demands, where the Company had succeeded and
the appeals filed by the Department were pending. It has been
clarified by the Revenue that the disputed amount has not been          D
included and only that amount which was payable as per the or-
der of CIT (Appeal), is included. [Paras 26 and 29] [1023-C, H;
1024-A-BJ
     3. The question as to whether it was permissible for the
Department to include the interest and penalty in its demand, is        E
not being decided in the present appeal. The parties are permit-
ted to approach the Board, seeking clarification as to what was
meant by the words 'to consider' (as it occurred in the Rehabili-
tation Scheme) i.e., whether the Board meant that it was manda-
tory on the part of the Revenue to waive the interest and penalty       F
or it was only recommendatory and, therefore, it was upto to the
Department to agree or not to agree to the said request. The
jurisdiction of the Board, whenever such application is filed, would
be limited to the aforesaid aspect alone. [Paras 31 and 32) [1024-
G-H; 1025-A]
                                                                        G
     4. The Income Tax Department shall be entitled to take steps
for attachment of the properties of the Company, including the
property at Mumbai, as per the provisions of the Income Tax Act
and shall be entitled to sell the same. If there are any secured
creditors in respect of these properties, such attachment and
sale shall be subject to the rights of those creditors. Out of the      H
1012            SUPREME COURT REPORTS                        [2016] 4 S.C.R.


A      proceeds, the Principal amount of tax due to the Income Tax
       Department and even the admitted excise dues shall be paid to
       the Revenue. [Para 33) [1025-B-C)
              5. As regards intervention application filed by the Compa-
       nies who had entered into MOU in respect of the property of the
 B     respondent-company, once it is found that such an agreement
       was in violation of the Rehabilitation Scheme, the arrangement
       with the aforesaid interveners entered into by the Company loses
       its legal force and no right would accrue to these interveners on
       the basis of the said agreements. [Para 34) [1025-E]
              CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5038 of
 c     2016.
              From the Judgment and Order dated 16.08.2011 of the High Court
       of Delhi at New Delhi in WP (C) No. 1875 of201 I .
            . Maninder Singh, ASG, Sanjay Sen, C. A. Sundram, Shyam Diwan,
       Dr. A. M. Singhvi, Parag Tripathi, Sr. Advs., S. A. Haseeb, Ms. Sadhna
 D     Sandhu, Mrs. Anil Katiyar, Mrs. Shally Bhasin, Rudreshwar Singh,
       Apoorve Karol, Vaibhav Tyagi, Kaushik Poddhar, Ms. Sujatha Shirolkar,
       Mahesh Aggarwal, Ankur Saigal, Abhinav Agrawal, E. C. Agrawala,
       Gagan Gupta, Ajay K. Jain, Akshat Kumar, A. Mukherjee, Ad vs. for the
       appearing parties.
 E            The Judgment of the Court was delivered by
              A.K. SIKRI, J. I. Leave granted.
             2. Respondent No. 1 (hereinafter referred to as the 'Company'),
       namely, Mis GTC Industries Ltd. became sick Company sometime in
       the year 1997 as its net worth had eroded. As per the requirements of
 F     Section 15 of The Sick Industrial Companies (Special Provisions) Act,
       1985 (hereinafter referred to as the 'SICA'), it filed reference before .
       the Board oflndustrial and Financial Reconstruction (hereinafter referred
       to as the 'Board') which was admitted and registered as Case No.17/
        1997. The Board conducted enquiry into the working of Company to
       determine whether it had become a sick industrial company and in the
 G     process appointed the Managing Director, State Bank of India (MA)
       (RCB), Mumbai as the Operating Agency (OA) to enquire into and
       make a report with respect to certain matters which was specified in the
       orders passed by the Board in this behalf. The Board, on the completion
       of the enquiry1 satisfied itself that Company had become a sick industrial
 H     company. A Draft Rehabilitation Scheme (DRS) was prepared by the
 DIRECTOR GENERAL OF INCOME TAX (ADMN.) & ANR. v.                           1013
    MIS. GTC INDUSTRIES LTD. & ANR. [A.K. SIKRI, J.]

OA which was submitted to the Board and the Board circulated the said        A
Scheme vi de its order dated 14.01.2000. In this DRS, following income
tax reliefs were proposed:
      (a)To exempt from the applicability of the provisions of Section
41 (I) of the Income Tax Act, 1961 and to allow carry forward of
unabsorbed losses and allowances beyond eight years.                         B
     (b)To lift attachment order imposed by Income Tax Department
against immovable and movable properties including Debtors and Bank
Accounts. Thereafter, not to attach any property including movable
properties of the company during the rehabilitation period.
     (c)To grant stay against demand raised by Department but are in         c
dispute before various appellate authorities/Courts.
     (d) To waive interest and penalty, if any, imposed and not to levy
such interest and penalties during the rehabilitation period.
     (e)To exempt GTC from Capital Gain on sale of surplus land and/         D
or sale of industrial sheds proposed for development on surplus land at
Maro I.
    (f) To exempt from TDS against payments to be received by the
company.
     Objection was filed by the appellant against the DRS on 23.03.2001.     E
During hearing dated 29 .03.2001, the representative of the appellant
stated that the appellant had no objection ifthe reliefs and concessions
sought were not directed to be given but kept for the consideration of
the Income Tax Department.
     3. The Scheme ofreconstruction/rehabilitation which was submitted       F
by the OA, after consultation with all the stakeholders and creditors as
per the requirement of law, was approved and sanctioned by the Board
(hereinafter referred to as the 'SS-02') vide order dated 16.02.2002. It
may be mentioned here that after the DRS was circulated and before it
could be sanctioned, the income tax demand of Rs.366 crores was
intimated by the Income Tax Department (appellant herein) to OA on           G
01.08.2001. While sanctioning the Scheme on 16.12.2002, the following
income tax reliefs were kept in the Scheme:
      "(a) To consider exemption from the applicability of the provisions
      of Sections 41 ( 1), 11SJB,43-B and 72(3) of the Income Tax Act,
                                                                             H
1014            SUPREME COURT REPORTS                         [2016] 4 S.C.R.



A            1961 and to allow carry forward of Unabsorbed Losses and
             allowances beyond eight years.
             (b) To consider waiving interest and penalty, if any, imposed and
             not to levy such interest and penalties during the rehabilitation
             period.
 B           (c) To consider exempting GTC from Capital Gain on sale of
             surplus land and/or sale of industrial sheds proposed for
             development on surplus land at Maro! and/or sale of any other
             surplus assets.
             (d) To consider exempting GTC from TDS against payments to
 c           be received by the company."
             Besides this, under the head 'General Terms and Conditions' in
       Para I O(k) of the Rehabilitation Scheme, the Board directed with regard
       to the income tax dues as under:

 D           "I O(k): The Income Tax Department would lift the attachment
             orders imposed by them against immovable and movable properties
             ofGTC including debtors and bank accounts and thereafter not to
             attach any property including movable properties of the company
             during the rehabilitation period without prior consent of BIFR.
             The recovery proceedings against demands raised by Income Tax
 E           Department against disputed liabilities shall remain suspended and
             refunds due to company, if any, would not be adjusted against
             such demands."
             4. The said relief was not envisaged under the head reliefs and
       concessions asked from CBDT in Para 9(Q) and such direction was
 F     given under the head General Terms and Conditions, without consent of
       the appellants required under Section 19(2) of SICA. Further, in Para
       6(t) of the Sanctioned Rehabilitation Scheme (SS-02), the Board referred
       to the assumptions of the projected profitability Statement at Annexure
       II of the SS-02. The assumptions of profitability, to be considered part
       of the Sanctioned Scheme, included ii1ter alia the following:
 G
            (i) The sales would comprise of own manufacture of cigarettes
       and cigarettes purchased from convertors.
            (ii) That the in-house capacity utilization would be in the range of
       54%fo 75%.
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 DIRECTOR GENERAL OF INCOME TAX (ADMN.) & ANR. v.                             1015
    MIS. GTC INDUSTRIES LTD. & ANR. [A.K. SIKRI, J.]

     Further, as per the projected profitability statement, the projected      A
sales comprised of cigarettes only, and that as per the projected fund
flow statement, there was to be no decrease in the fixed assets. It was
further laid down in para 1O(t) under the head 'General Terms and
Conditions' that "the company would not undertake any major
modernization/diversification program/ capital expenditure except normal
                                                                               B
capital expenditure during the period of implementation of the
rehabilitation scheme without specific prior permission of the MA/BIFR."
      Besides this, Board further directed the Promoters in para 9 (S)(b)
of the Sanctioned Rehabilitation Scheme "to meet any shortfall in the
cash flow projections or any contingency not conceived in the Scheme.
In this regard, promoters may raise moneys by way of development of            c
industrial estate and sale thereof of surplus land available at Marol,
Mumbai or sale/development of any other surplus assets."
     5. Having regard to the aforesaid provisions in the Scheme with its
imprimatur by the Board, the Revenue could not and did not resort to
any action by way of attachment of movable or immovable assets of the          D
company.
      6. The cut-off date in the Scheme was 31.12.1998 and the
rehabilitation period of eight years was prescribed therein. However,
later on the cut-off date in the Scheme was changed from 31.12.1998 to
31.03 .2003 by the Board and the eight years period provided for               E
rehabilitation was to be reckoned from 31.03.2003. In this way, the
Scheme was to lapse on 31.03.2011.
     7. When this Scheme was still in operation, the Revenue filed petition
under Section 22( 1) of SICA seeking permission to recover the
outstanding dues of Rs. 426.37 crores which were raised after the date         F
of Sanctioned Scheme. On this petition, the Board passed order dated
29.03.2006 directing the Revenue to release a sum of Rs. 4.28 crores
which was withheld by the Revenue and further directed the Income
Tax Department to expedite the settlement of the disputed demands. It
was also observed that in the event of crystallization of the disputed
                                                                               G
demand of the Revenue and in case of shortfall of funds thereof for
repayment by the company, company/promoters would bring the requisite
amount of interest free unsecured loan and/or would raise the necessary
fund by way of disposal of the company's surplus assets as envisaged in
paragraph S of the SS-02. It also directed that the company would settle/
                                                                               H
1016            SUPREME COURT REPORTS                         [2016] 4 S.C.R.



 A     pay the income tax dues, if any, which would become payable after
       sanction/implementation ofSS-02 i.e. w.e.f. 01.04.2003 onwards in the
       normal course and neither the Company nor its promoters would be
       entitled for any protection under SICA for delay/non-payment of such
       dues.
 B           8. When the position stood thus, on 29.06.2007 the Company
       submitted before the Board that its net-worth became positive on
       31.03.2007 and sought de-registration from SICA/Board. The Board,
       passed order dated 29.06.2007 holding that since net-worth of the
       company had turned positive as on 31.03.2007, it has seized to be a sick
       industrial undertaking within the meaning of Section 3( I )(0) of SICA
 c     and discharged the company from the purview of SICA. Operative part
       of the direction in the said order read as under:
             "(i) The SB! is hereby relieved from the responsibility as the MA.
             (ii) The unimplemented provision(s) of the SS-02 forthe unexpired
 D           period of the Scheme and also the unimplemented provisions of
             the subsequent order(s) issued by the Board in this regard, if any,
             would continue to be implemented by the concerned agencies
             and their implementation would be monitored by the company.
             (iii) The 'Special Director', appointed by the BIFR on the
 E           company's Board of Directors (BOD), if any, would stand
             discharged with immediate effect.
             (iv) The company would complete necessary formalities with the
             'Registrar of Companies' (ROC), as may be required."
             9. As per the Revenue, as on 20.01.2010, there were outstanding
 F     dues and income tax amounting to Rs. 761.35 crores and the demand
       thereof was sent to the Company for payment and it was also mentioned
       that coercive action may be taken to recover the said amount. Such a
       demand was made on the premise that the net-worth of the company
       had turned positive and it has ceased to be a sick company. Therefore,
       having lost the status of a sick company, it was not entitled to the
 G
       protection under provisions of SICA.
            10. Within few days of this demand, the Revenue found from the
       reports in print media that the company had sold its Vile Parle Property
       in Mumbai for a sum of Rs.591 crores. In order to verify this sale
       transaction, a specific survey under Section 133(A) of the Income Tax
 H
 DIRECTOR GENERAL OF INCOME TAX (ADMN.) & ANR. v.                           1017
    M/S. GTC INDUSTRIES LTD. & ANR. [A.K. SIKRI, J.]

Act was conducted from which it was gathered that the Company had            A
entered into a Memorandum of Understanding (MOU) with M/s. Sheth
Developers Pvt. Ltd. and Suraksha Reality Ltd. for developing the said
property. This MOU prescribed that on execution of agreement for
development, the assessee Company would receive a total consideration
of Rs.542.70 crores out of which the assessee Company had already
                                                                             B
received advance consideration of Rs.60 crores at the time of signing
the MOU. Further, the company had also entered into an agreement for
development of assessee's land at Hyderabad for construction of Ashoka
Golden Mall and Multiplex. The company had not passed on the
possession of Vile Parle as development agreement was not signed.
Thus, the company had, by this time, converted almost all the immovable      c
properties owned by it as business assets into stock-in-trade and almost
all properties were put on sale. The tentative cost of sale of all these
properties would be between Rs. 700 crores to Rs. 1000 crores
approximately.
      11. On coming to know of the aforesaid information, concerned          D
Tax Recovery Officer of the Revenue demanded tax and penalty of
remaining Assessment Years was also served vide letter dated
12.03.2010. On receiving the said letter dated 12.03.2010, the Company
filed M.A. bearing No. 200/20 I 0 before the Board seeking stay of any
coercive action proposed to be taken by the Revenue. This application
was contested by the Revenue, inter alia, on the ground that since the       E
company had been discharged from SICA vide order dated 29.06.2007,
the Board had no jurisdiction left over implementation of the Scheme
and the company could no longer enjoy protection under Section 22( I)
of SICA. On this application, order dated 09.04.2010 was passed by the
Board directing the Revenue not to take any coercive action against the      F
company. It was also directed that the unimplemented provisions ofSS-
02, particularly, paragraph 10-k thereof, should be implemented by
DIT(R).
      12. This order of the Board was challenged by the Revenue by
filing appeal before the Appellate Authority for Industrial and Financial    G
Reconstruction (hereinafter referred to as the 'AAIFR'). In this appeal,
interim order dated 03.06.2010 was passed directing both the parties to
maintain status quo. According to the Revenue, despite the aforesaid
order, the Company invited on line forward auction for the land situated
in Marol Industrial Area which forced the Revenue to file MA No.448/
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1018            SUPREME COURT REPORTS                            [2016) 4 S.C.R.



A      20 I 0 before the Appellate Authority on 24.08.20 I 0. In this application,
       the Appellate Authority passed the order suspending the proposed on! ine
       e-auction. The appeal was ultimately decided by the Appellate Authority
       on 31.01.2011. With other connected appeals, inter alia, ordering that
       Income Tax Department could not have initiated any coercive action for
       recovery of its dues against the Company since the unimplemented
 B
       provisions of the sanctioned rehabilitation scheme for the unexpired period
       of the scheme are still under implementation.
             13. This order was challenged by the Revenue by filing the Writ
       Petition (C) No. 1875/2011 in the High CourtofDelhi. While the aforesaid
       writ petition was pending certain other developments took place. Some
 c     dues of Central Excise Authority were also payable by the company.
       The Company had written few letters to the Central Excise Authorities,
       in the year 20 I 0, stating that their manufacturing operation has become
       unviable because of fixed overheads and consequently a decision was
       taken to restructure business by entering into reality business. The
 D     company also had filed Misc. Application No. 114/2011 with a prayer to
       extend the duration ofrehabilitation period (originally fixed for eight
       years) by another one year. Due to the delay caused in implementation
       of the said Scheme because of the coercive measures taken against the
       company by the Revenue this application was decided by the Board on
       31.03.2011. The Board by a detailed order recorded a specific finding,
 E     based on material produced before it, that the Tax Departments could
       not be held responsible for any delay in the implementation of the Scheme.
       It also held that once the Company had been discharged under SICA on
       its net-worth turning positive in the year 2007, provisions of Section 18(5)
       were not applicable and, therefore, any major modification by way of
 F     extension of time, was not permissible.
             14. Against the aforesaid order of the Board, the Company filed an
       appeal before the Appellate Authority. This appeal was, however,
       dismissed by the Appellate Authority vide orders dated 29/30.06.2011
       holding that the Company was not entitled to get the period of
 G     rehabilitation scheme extended. It specifically affirmed the finding of
       the Board that the Company had violated the sanctioned scheme and
       that no modification of the Scheme was possible.
            15. The aforesaid order of the Board was by majority of 2: I.
       Whereas two members were of the opinion that the order of the Board
       did not require any interference and gave their detailed reasoning in
 H
 DIRECTOR GENERAL OF INCOME TAX (ADMN.) & ANR. v.                              1019
    MIS. GTC INDUSTRIES LTD. & ANR. [A.K. SIKRI, J.]

support of the said view, the Chairman of the Board, who was retiring A
on the same day, observed that he had no time to write a detailed order
but expressed his view that this case should be remanded back to the
Board for an enquiry to be conducted regarding the violation of clause
1O(f)(b) of the Sanctioned Scheme by the Company entering into an ·
agreement for transfer/development of their property at Ville Parle.
                                                                         B
According to the Chairman, as per para 9(5)(b) of the sanctioned Scheme,
there was a provision for sale or development of any other surplus asset
and the plea of the Company regarding extension of time needed a
detailed enquiry by the Board. Notwithstanding these observations of
the Chairman, who was the dissenting member, majority view was that
the appeal was bereft of any merit and the order of the Board did not           c
suffer from any legal error and on this basis majority had dismissed the
appeal. Obviously the effect was that the appeal of the Company stood
dismissed.
       16. Knowing the aforesaid consequence fully well and conscious
of the same viz. the decision of the Appellate Authority had gone against       D
it, the Company challenged the orderoftheAppellateAuthority by filing
Writ Petition No. 4614 of 2011. This writ petition was, however,
dismissed as 'withdrawn' on 05.07.2011 and the High Court gave two
months' time for the clearance of the manufactured stock of goods and
payment of excise duty on those goods. The order was silent about
                                                                                E
income tax dues. The reason for which withdrawal was sought is
contained in the following portion of the said order of the High Court.
      "We have heard learned counsel for the parties. Learned senior
      counsel for the petitioner, on instructions, states that he would like
      to withdraw the writ petition and the application to pursue the
      course suggested by the majority view of the AAIFR vi de order            F
      dated 29.06.2001 for seeking modification of the Scheme by
      approaching the BIFR."
     With the withdrawal of the writ petition, order of the Board, as
affirmed by the Appellate Authority, attained finality.
                                                                                G
      17. As noticed above, at that time, Writ Petition No. 1875 of2011
filed by the Revenue was pending in the High Court. This petition was
filed against the order of the Appellate Authority restraining the Revenue
from taking coercive action against the Company for recovery of its
dues on the ground that unimplemented provision of the Sanctioned
Rehabilitation Scheme for the unexpired period of the Scheme was still          H
1020            SUPREME COURT REPORTS                           [2016) 4 S.C.R.



A   under implementation. This reason was no more in existence in view of
    the aforesaid orders passed by the Board as well as Appellate Authority
    refusing to give extension to the Company in respect of the sanctioned
    Scheme. The purport and effect of those orders, clearly, was that the
  · Scheme had come to an end and was no more in operation. The Revenue,
    thus; filed detailed rejoinder affidavit in Writ Petition No. 1875of201 I
B
    bringing the aforesaid development on record in the said writ petition.
             I 8. Notwithstanding the aforesaid background, in the writ petition
       preferred by the Revenue, High Court has passed impugned orders dated
       I 6.08.20 I I dismissing the writ petition with the observations that the
       appropriate remedy forthe petitioner is to move the Board for lifting of
 c     the bar under Section 22 of SICA. It is a very brief order and the entire
       reasoning on which the said order is based can be found in the following
       discussion by the High Court.
             "The violation alleged by the petitioners is broadly that respondent
             no. I has been indulging in sale of assets without defraying the
 D           income tax liabilities in consonance with paragraph 9S(b) of the
             sanctioned scheme. It is the learned counsel's say that the
             Department had not taken, in past, coercive action for recovery
             of huge amounts of income tax dues in accordance with the
             provisions of paragraph I O(k) of the sanctioned scheme. It is
 E           submitted that this course of action of sale of assets to satisfy the
             scaled down claim of the petitioners in terms of the scheme is not
             permissible. It is the say of the Department that since it is a
             scheme of revival, respondent no. I ought not be allowed to sell
             the assets without paying the dues to the Department.

 F           In our considered view, the impugned orders cannot be faulted,
             which are, predicated on the factual position at that stage of time.
             If the grievance is, as is now sought to be urged before us; the
             appropriate remedy for the petitioner is to move the BIFR for
             lifting of the bar under Section 22 of the Sick Industrial Companies
             (Special Provisions) Act, 1985 by articulating before the said forum
 G           the factum of alleged violation of the sanctioned scheme.
            19. What follows from the above is that the High Court was
       convinced by the reason that the question as to whether the Company
       had indulged in sale of assets unauthorisedly and in violation of para
       9(5)(b) which is yet to be taken by the Board. The High Court also
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 DIRECTOR GENERAL OF INCOME TAX (ADMN.) & ANR. v.                          1021
    MIS. GTC INDUSTRIES LTD. & ANR. [A.K. SIKRI, J.]

proceeded on a palpably wrong presumption that the sanctioned Scheme        A
was still under operation and, therefore, bar under Section 22 of the
SICA applied. For this reason, it directed that the only remedy left for
the Revenue was to approach the Board for lifting of the bar under
Section 22 of the SICA. From the facts and events noted above, this
premise and assumptions are clearly erroneous and contrary to record.
                                                                              B
      20. In the first instance, it is to be seen that the Scheme had already
expired on 31.03.2011. Application for extension of the Scheme was
filed before the Board which was dismissed. The reason given by the
Company seeking extension was that the implementation of the Scheme
was delayed because of the coercive tactics which the Revenue had
adopted against the Company. This claim was found to be hollow and · C
incorrect. The Appellate Authority had upheld this order of the Board,
albeit by a majority of2: I. Thus, no Scheme was in operation. Another
significant aspect which is to be kept in mind is that way back in the year
2007, the net worth of the Company had turned positive and it was no
more a sick Company. Thus, the Revenue had right to recover arrears D
of income tax after 2007 and in any case after 31.03.2011 when the
Scheme expired.
     21 :lt may be pertinent to mention at this stage that the Company
has approached the Board, after withdrawal of its Writ Petition No.
4614of2011 011 the ground that while withdrawing this petition the High      E
Court had permitted the Company to seek recourse to the Board in view
of the observations of the majority opinion of the Appellate Authority.
Even this is erroneous.
      22. The Appellate Authority dismissed the appeal on merits. In the
course of discussion on various aspects and arguments that were raised       F
before the Appellate Authority, the Appellate Authority noted that the
Company had taken steps to close a unit which was rehabilitated under
the Sanctioned Scheme and to sell the property thereof without obtaining
the prior approval of the Board. It further observed that when those
steps were taken, jurisdiction of the Board over the Company continued
under Section 18(9) and Section 18(12) of SICA. In the opinion of the        G
Appellate Authority, since the Company had availed itself of and was
continuously availing the beneficial measures ofSS-02, which included
rehabilitation measures for the Mumbai unit, it was obligatory on the
part of the Company to seek and obtain the prior permission of the Board
to close the Mumbai uriit, shift its plant and machinery to the Vadodara     H
1022             SUPREME COURT REPORTS                             [2016] 4 S.C.R.


A      and engage in reality business. Thus, while rejecting the argument of
       the Company that there was no violation of the Scheme in dismantling
       the Ville Parle Unit and selling its land and building, the Appellate Authority
       took the view that it had altered the essential ingredients of the SS-02 as
       a result of which that Scheme stood mutilated and, therefore, seeking
       extension of such Scheme was untenable. While discussing this aspect,
 B
       theAppellateAuthority, repelling the argument, also remarked as under:
              "12. The only option available to the company was to seek
              modification of the scheme under Section 18(5) of SICA which
              had to be considered through appropriate procedure prescribed
              under SICA for seeking fresh commitments from the concerned
 c            parties, as required."
           By these remarks the Appellate Authority only pointed out the breach
       committed by the company in not taking prior permission and nowhere
       permitted the company to resort to the same even now as that opportunity
       was already lost.
 D
              23. It is the aforesaid remarks, advantage whereof was taken by
       the Company when orders dated5'h July, 2011 were passed in Writ Petition
       No. 4614 of201 l. Though, the petition was withdrawn, the counsel for
       the Company made the statement that the Company would like to pursue
       the course 'suggested' by the majority view of the Appellate Authority
 E     in its order dated 29 1h June, 2001 for seeking modification of the Scheme
       by approaching the Board. No such suggestion or permission at all was
       given. It is stated at the cost of repetition that the aforesaid observations
       were made while dealing with the partieular argument of the Company.
       That did not mean that the aforesaid observations gave the Company
 F     any liberty to approach the Board even at this juncture. The filing of
       such application by the Company before the Board seeking modification
       is, therefore, totally untenable move on the part of the Company. Such
       an application is not maintainable in law.
             24. When the matter is considered in this hue, keeping in mind the
 G     aforesaid backdrop, the impugned order passed by the High Court in the
       writ petition that was preferred by the Revenue, is manifestly wrong
       and unsustainable. For the reasons stated above, we are of the view
       that the Sanctioned Scheme (SS-02) has outlived its life which came to
       an end on 31" March, 2011. the Revenue is, thus, entitled to recover its
       dues.'
 H
 DIRECTOR GENERAL OF lNCOME TAX (ADMN.) & ANR. v.                            1023
    MIS. GTC INDUSTRIES LTD. & ANR. [A.K. SIKRI, J.]

     25. The next question is aboutthe quantum of dues thatthe Revenue        A
has to recover from the Company.
     26. We may mention at this stage that during the course of arguments,
learned senior counsel appearing for the Company stated that the
Company was ready to settle the dues of the Revenue and for this
purpose it was agreeable for the sale of its Ville Parle land under the       B
directions of this Court. 1t was also agreed that the said sale may be
carried out by the monitoring agency, i.e., Canara Bank. The learned
senior counsel, however, vehemently questioned the amount claimed by
the Revenue in this behalf as it was submitted that the demand of Rs.
761.35 crores on account of income tax dues as made by the Revenue
was not correct. On this aspect both the sides made their detailed
                                                                              c
submissions.
     27. By affidavit dated 02.05.2016 filed by Ms. Anita Sinha,
Additional Director General (Recovery) C.B.D.T., following dues are
claimed:
                                                                              D
      "a. Principal amount of tax                    Rs.81.66 crores
       b. Principal amount of Penalties              Rs.83.29 crores
       c. Interest u/s. 220(2) till                  Rs.487.50 crores
           30.04.2016
                                                                              E
           Total                                     Rs.652.45 crores"
    28. This is the revised figure given on 02.05.2016. As pointed out
above, in the special leave petition filed by the Revenue, a demand for
sum of Rs. 761.35 crores was made.
      29. On the other hand, it is the say of the Company that the demands    F
were reduced at an amount of Rs. 52.53 crores by April, 2012 itself. It
was submitted that in the reply filed by the Revenue to I.A. 6 of2014
filed by the Company, the latest position of tax demand and status of
appeals was mentioned. The Revenue had stated the outstanding of Rs.
635.96 crores (principal amount of tax and penalty Rs. 164.96 crores +        G
interest upto June, 2015 @ 471.01 crores ). Referring to the details in
the said chart, as per which the demand was calculated by the Revenue
in respect of different Asse~.sment Years, an endeavour was made by
the learned senior counsel for the Company to show that even those
demands were included where the Company had succeeded and the
                                                                              H
1024            SUPREME COURT REPORTS                            [2016] 4 S.C.R.



A      appeals filed by the Department were pending before the Income Tax
       Appellate Tribunal. It was, however, clarified by Mr. Maninder Singh,
       learned ASG appearing for the Revenue that no doubt appeals hav~
       been filed by the Revenue which are pending before the !TAT, but the
       disputed amount has not been included and only that amount which was
       payable as per the order of CIT (Appeal), is included.
 B
            30. Another important submission, which needs consideration,
       advanced by Mr. Sundaram, learned senior counsel appearing for the
       Company was that in the Scheme which was approved by the Board,
       Income Tax Department had agreed to waiye_ interest and penalty and,
       therefore, it was not permissible for the Department to include the interest
 c     and penalty. The particular clause in the Scheme as sanctioned by the
       Board reads as under:
             "Q. Central Government
              CBDT/Income Tax
 D

              (b) to consider waivi11g interest and penalty, if any imposed and
              not to levy such interest and penalties during the rehabilitation
              period."
            31. It was argued that the words 'to consider' are to be treated as
 E
       mandate. It was submitted that the expression 'to consider' in similar
       Schemes approved by the Board has been interpreted by various Division
       Benches of High Courts to mean that the relief granted is mandatory
       and not merely recommendatory. Reference was made to the judgment
       of Delhi High Court in Union ofIndia v. CIMMCO Ltd. & Ors., bearing
 F     W.P.(C) No. 626 of 2014 and that of Madras High Court in
       Commissioner Income Tax-I, Cllennai v. Mis. Tube Investments of
       India Ltd.-/, Cltennai, bearing Tax Case (Appeal) Nos. 519 and 521
       of2005.
             32. We are not deciding this issue in the present appeal and permit
 G     the parties to approach the Board seeking clarification as to what was
       meant by the words 'to consider' i.e., whether the Board meant that it
       was mandatory on the part of the Revenue to waive the interest and
       penalty or it was only recommendatory and, therefore, it was upto to the
       Department to agree or not to agree to the said request. The jurisdiction
       of the Board, whenever such application is filed, would be limited to the
 H
  DIRECTOR GENERAL OF INCOME TAX (ADMN.) & ANR. v.                               1025
     M/S. GTC INDUSTRIES LTD. & ANR. [A.K. SIKRI, J.]

aforesaid aspect alone and the Board shall decide the issue within the            A
period of two months. Otherwise, we make it clear that as the Scheme
has lapsed no further proceedings of any nature are to be entertained by
the Board including the application for modification filed by the Company
and pending before the Board.
       33.The Income Tax Department shall be entitled to take steps for           B
  attachment of the properties of the Company, including Ville Parle land
  as per the provisions of the Income Tax Act and shall be entitled to sell
 the same. If there are any secured creditors in respect of these properties,
  such attachment and sale shall be subject to the rights of those creditors.
  Out of the proceeds, the Principal amount of tax due to the Income Tax
  Department and even the admitted excise dues shall be paid to the               c
. Revenue. Insofar as payment of interest and penalty is concerned, that
  would be dependent upon the decision which the Board would give.
     34. Before parting with, we may point out that M/s. Sheth
Developers Private Limited and Suraksha Realty Limited have filed
applications to intervene in the matter as they submit that in respect of         D
Ville Parle Land, MOU was entered into by the Company with them.
However, once it is found that such an agreement was in violation of the
Scheme, the arrangement with the aforesaid interveners entered into by
the Company loses its legal force and no right would accrue to these
interveners on the basis of the said agreements. We, thus, dismiss the            E
plea raised by the intervener.
     35. Appeal stands allowed and disposed of on the terms indicated
 above.
 Kalpana K. Tripathy                                       Appeal disposed of.
                                                                                  F