M/S. SHV ENERGY PVT. LTD., CHENNAI V. ACIT, CHENNAI

CO 10/CHNY/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0568 (ITAT-CHENNAI)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 05-01-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 27-01-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AN D CROSS OBJECTIONS FILED
• Keywords: Condonation of delay
• Section: 6

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI . , , , BEFORE SHRI DUVVURU RL REDDY, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER SL.NO ITA NO: AY APPELLANT RESPONDENT 1 3116/CHNY/2019 2007 - 08 ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 6(1), CHENNAI. DR: MS. R. ANITA, JCIT M /S. SH V LPG INDIA PVT . LTD., ALPHA CENTRE, 7 TH FLOOR, NO. 150 & 151, NORTH USMAN ROAD, T.NAGAR, CHENNAI 600 017. [PAN: AABCC 1760H] AR: SANTANU SUBINOY GUHA 2 CO : 10/CHNY/2020 2007 - 08 M/S. SHV LPG INDIA PVT. LTD., ALPHA CENTRE, 7 TH FLOOR, NO. 150 & 151, NORTH USMAN ROAD, T.NAGAR, CHENNAI 600 017. [PAN: AABCC 1760H] AR: SANTANU SUBINOY GUHA ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 6(1), CHENNAI. DR: MS. R. ANITA, JCIT & /DATE OF HEARING : 05.01.2021 & /DATE OF PRONOUNCEMENT : 05.01.2021 / O R D E R PER BENCH: THIS APPEAL FILED BY THE REVENUE AND THE CROSS OBJE CTIONS FILED BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF THE LEARNED C OMMISSIONER OF INCOME TAX (APPEALS)-4(I/C), CHENNAI IN ITA NO. 17/2011-12/CIT (A)-4/AY:2007-08 DATED 16.09.2019 FOR THE ASSESSMENT YEAR 2007-08. :-2-: ITA NO: 3116/CHNY/2019 & CO NO: 10/CHNY/2020 2. THE ASSESSEE HAS FILED THE CROSS OBJECTIONS NO. 10/CHNY/2020, BELATEDLY BY 17 DAYS AND FILED CONDONATION PETITION . 3. ON HEARING THE PARTIES, WE FIND THAT THE ASSESSE E WAS PREVENTED BY SUFFICIENT CAUSE FOR FILING THE CO BELATEDLY. THER EFORE, WE CONDONE THE DELAY AND ADMIT THE CO FOR ADJUDICATION. 4. WE HAVE HEARD THE COUNSEL FOR THE ASSESSEE AND T HE LD. DR AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE TI ME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE INVITING OUR ATTENTION TO THE COPY OF THE LETTER DATED 17.12.2020 SUBMITTED THAT THE ASSESSEE WANTS TO UTI LIZE THE DIRECT TAXES VIVAD SE VISHWAS SCHEME, 2020 TO SETTLE PENDING D ISPUTE RELATING TO DIRECT TAXES AND IN THIS REGARD THE ASSESSEE HAS SUBMITTED A COPY OF FORM 3 RECEIVED FROM THE DESIGNATED AUTHORITY. 5. THE BENCH HAS CONSIDERED RIVAL CONTENTIONS OF BO TH SIDES AND AFTER HEARING BOTH PARTIES, WE FOUND THAT THE GOVERNMEN T OF INDIA HAS ANNOUNCED IN THE BUDGET, 2020, A DIRECT TAXES VIVA D SE VISHWAS SCHEME, 2020 TO SETTLE PENDING DISPUTE RELATING TO DIR ECT TAXES AT VARIOUS APPELLATE FORUMS INCLUDING THE FIRST APPELLATE A UTHORITY, TRIBUNAL, HIGH COURT AND SUPREME COURT. IN THIS REGARD, THE SCHE ME HAS BEEN NOTIFIED ON 17 TH MARCH, 2020 AND BECAME DIRECT TAXES VIVAD SE VISH WAS ACT, 2020. AS :-3-: ITA NO: 3116/CHNY/2019 & CO NO: 10/CHNY/2020 PER THE SAID SCHEME, ASSESSEE IS ALLOWED TO SETTLE DIRECT TAX DISPUTE IN A MANNER AND PROCEDURE PRESCRIBED THEREIN BY FILING N ECESSARY DECLARATION AND UNDERTAKING. THE SCHEME HAS ALSO SPECIFIED THE AMOU NT OF TAXES, INTEREST, AND PENALTY, IF ANY PAYABLE UNDER THE ACT. IF AN A SSESSEE FILED A DECLARATION AND PAY SPECIFIED TAXES AS PER THE SCHEME AND WITHDRAW THE APPEAL PENDING BEFORE THE APPELLATE AUTHORITIES, THE DES IGNATED AUTHORITY SHALL PASS AN ORDER IN FORM 5 CONFIRMING PAYMENT MADE U NDER THE SCHEME AND GRANT IMMUNITY FROM PENALTY AND PROSECUTION. 6. THE ASSESSEE HAS SUBMITTED A COPY OF FORM 3 RECE IVED FROM THE DESIGNATED AUTHORITY. THEREFORE, ONCE THE ASSESSEE FILED A DECLARATION IN FORM NO.1 ALONG WITH UNDERTAKING AND EXPRESSED THEIR WIL LINGNESS TO SETTLE PENDING DISPUTES REGARDING DIRECT TAXES, THEN THERE IS NO P OINT IN KEEPING THE APPEAL FILED BY THE ASSESSEE. WE, FURTHER NOTED THAT RECE NTLY THE HONBLE JURISDICTIONAL HIGH COURT OF MADRAS HAS CONSIDERED AN IDENTICAL APPLICATION FILED BY AN ASSESSEE IN THE CASE OF M/S. NANNUSA MY MOHAN (HUF) VS. ACIT IN T.C.A NO.372 OF 2020 FOR AVAILING THE BENEFIT O F VIVAD SE VISHWAS SCHEME, 2020, WHERE THE HONBLE HIGH COURT HAS D ISMISSED THE APPEAL FILED BY THE PETITIONER AS WITHDRAWN, BUT ALLOWED LIBERTY TO THE ASSESSEE TO RESTORE THE APPEAL IN THE EVENT THE DESIGNATED AUTHORITY FOR ANY REASON REJECT APPLICATION FILED BY THE ASSESSEE UNDER SECTION 4 OF THE ACT. THE RELEVANT :-4-: ITA NO: 3116/CHNY/2019 & CO NO: 10/CHNY/2020 PORTIONS OF THE OBSERVATIONS OF THE HONBLE HIGH CO URT OF MADRAS VIDE ORDER DATED 16.10.2020 ARE EXTRACTED AS UNDER:- 2. WE HAVE HEARD MR.M.P.SENTHIL KUMAR, LEARNED CO UNSEL APPEARING FOR THE APPELLANT/ASSESSEE AND MR.T.R.SENTHIL KUMAR, LEAR NED SENIOR STANDING COUNSEL AND MS. K.G.USHA RANI, LEARNED COUNSEL FOR THE RES PONDENT/REVENUE. 3. THE LEARNED COUNSEL FOR THE APPELLANT / ASSESSEE, ON INSTRUCTIONS, SUBMITTED THAT THE APPELLANT / ASSESSEE INTENDS TO AVAIL THE BENEFI T OF VIVAD SE VISHWAS SCHEME ( VVS SCHEME' FOR BREVITY) AND IN THIS REGARD, THE ASSES SEE IS TAKING STEPS TO FILE THE APPLICATION / DECLARATION IN FORM NO. 1. 4. IT MAY NOT BE NECESSARY FOR THIS COURT TO DECIDE THE SUBSTANTIAL QUESTIONS OF LAW FRAMED FOR CONSIDERATION ON ACCOUNT OF CERTAIN S UBSEQUENT DEVELOPMENTS. THE GOVERNMENT OF INDIA ENACTED THE DIRECT TAX VIVAD SE VISHWAS ACT, 2020 (ACT 3 OF 2020) TO PROVIDE FOR RESOLUTION OF DISPUTED TAX AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO. THE ACT OF THE PAR LIAMENT RECEIVED THE ASSENT OF THE PRESIDENT ON 17TH MARCH 2020 AND PUBLISHED IN THE GAZETTE OF INDIA ON 17TH MARCH 2020. 5. IN TERMS OF THE SAID ACT, THE ASSESSEE HAS BEEN G IVEN AN OPTION TO PUT AN END TO THE TAX DISPUTES, WHICH MAY BE PENDING AT DIFFERENT L EVELS EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL OR BEFORE THE HIGH COURT OR BEFORE THE HON'BLE SUPREME COURT OF INDIA. UNDER SECTION 2(J) 'D ISPUTED TAX' HAS BEEN DEFINED. IN TERMS OF SECTION 3, WHERE A DECLARANT MEA NS A PERSON, WHO FILES A DECLARATION UNDER SECTION 4 ON OR BEFORE THE LAST DA TE FILES A DECLARATION TO THE DESIGNATED AUTHORITY IN ACCORDANCE WITH THE PROVISI ONS OF SECTION 4 IN RESPECT OF TAX ARREARS, THEN, NOTWITHSTANDING ANYTHING CONTAIN ED IN THE INCOME TAX ACT OR ANY OTHER LAW FOR THE TIME BEING IN FORCE, THE AMOUN T PAYABLE BY THE DECLARANT SHALL BE DETERMINED IN TERMS OF SECTION 3(A-C) THEREU NDER. 6. THE FIRST PROVISO TO SECTION 3 STATES THAT IN CA SE WHERE AN APPEAL OR WRIT PETITION OR SPECIAL LEAVE PETITION IS FILED BY THE I NCOME TAX AUTHORITY ON ANY ISSUE BEFORE THE APPELLATE FORUM, THE AMOUNT PAYABLE SHALL BE ONE-HALF OF THE AMOUNT IN THE TABLE STIPULATED IN SECTION 3 CALCULATED ON SUCH ISSUE, IN SUCH A MANNER AS MAY BE PRESCRIBED. THE SECOND PROVISO DEALS WITH THE CA SES, WHERE THE MATTER IS BEFORE THE COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RES OLUTION PANEL. THE THIRD PROVISO DEALS WITH CASES, WHERE THE ISSUE IS PENDIN G BEFORE THE INCOME TAX APPELLATE TRIBUNAL. THE FILING OF THE DECLARATION I S AS PER SECTION 4 OF THE ACT AND THE PARTICULARS TO BE FURNISHED ARE ALSO MENTIONED I N THE SUB SECTIONS OF SECTION 4. SECTION 5 OF THE ACT DEALS WITH THE TIME AND MANNER O F THE PAYMENT AND SECTION 6 DEALS WITH IMMUNITY FROM INITIATION OF PROCEEDINGS I N RESPECT OF OFFENCE AND IMPOSITION OF PENALTY IN CERTAIN CASES. SECTION 9 OF THE ACT DEALS WITH CASES, WHERE THE ACT 3 OF 2020 WILL NOT BE APPLICABLE. 7. AS OBSERVED, THE ASSESSEE IS GIVEN LIBERTY TO RE STORE THIS APPEAL IN THE EVENT THE ULTIMATE DECISION TO BE TAKEN ON THE DECLARATION TO BE FILED BY THE ASSESSEE UNDER SECTION 4 OF THE SAID ACT IS NOT IN FAVOUR OF THE ASSE SSEE. IF SUCH A PRAYER IS MADE, THE REGISTRY SHALL ENTERTAIN THE PRAYER WITHOUT INS ISTING UPON ANY APPLICATION TO BE FILED FOR CONDONATION OF DELAY IN RESTORATION OF THE APPEAL AND ON SUCH REQUEST MA DE BY THE ASSESSEE BY FILING A :-5-: ITA NO: 3116/CHNY/2019 & CO NO: 10/CHNY/2020 MISCELLANEOUS PETITION FOR RESTORATION, THE REGISTR Y SHALL PLACE SUCH PETITION BEFORE THE DIVISION BENCH FOR ORDERS. 8. IN THE LIGHT OF THE ABOVE, WE DIRECT THE APPE LLANT / ASSESSEE TO FILE THE FORM NO.1 ON OR BEFORE 20.11.2020 AND THE COMPETENT AUTH ORITY SHALL PROCESS THE APPLICATION / DECLARATION IN ACCORDANCE WITH THE AC T AND PASS APPROPRIATE ORDERS AS EXPEDITIOUSLY AS POSSIBLE PREFERABLY WITHIN A PERIOD OF SIX (6) WEEKS FROM THE DATE ON WHICH THE D ECLARATION IS FILED IN THE PROPER FORM. 7. IN THE LIGHT OF THE ABOVE DECISION OF THE HONBL E HIGH COURT OF MADRAS, AND BY TAKING NOTE OF THE FACT THAT THE ASSESSEE HAD SUBMITTED A COPY OF FORM 3 RECEIVED FROM THE DESIGNATED AUTHORITY, WE D ISMISS THE APPEAL FILED THE REVENUE AND THE CO FILED BY THE ASSESSEE, SUPRA , AS WITHDRAWN. HOWEVER, LIBERTY IS GIVEN TO THE REVENUE/ THE ASSE SSEE TO RESTORE THE APPEAL/CO, IN THE EVENT OF THE DESIGNATED AUTHOR ITY, FOR ANY REASON REJECT THE APPLICATION FILED BY THE ASSESSEE UNDER SECTIO N 4 OF THE SAID ACT. WE, FURTHER MAKE IT CLEAR THAT IF THE ASSESSEE HAS FOR ANY REASON OPTED OUT FROM THE SCHEME OR THE APPLICANT UNDER THE SCHEME MISREP RESENT ANY FACT WHICH RESULTED IN REJECTION OF APPLICATION FILED UNDER TH E SCHEME, THEN THE PROVISIONS OF SECTION 4(6) OF THE ACT, SHALL BE APPLICABLE TO SUCH APPEAL AND IN SUCH CASE, THE PROCEEDINGS AND THE CLAIMS WHICH WERE WITHDRAWN UNDER SECTION 4 AND ALL THE CONSEQUENCES UNDER THE INCOME-TAX ACT AGAINST T HE DECLARANT ASSESSEE SHALL BE DEEMED TO HAVE BEEN REVIVED. WE, FURTHER MAKE IT CLEAR THAT THE ASSESSEE SHOULD PROMPTLY INFORM THE ASSESSING OFFIC ER ABOUT THEIR DECISION TO OPT OUT OF THE SCHEME OR REJECTION OF APPLICATION B Y THE DESIGNATED AUTHORITY :-6-: ITA NO: 3116/CHNY/2019 & CO NO: 10/CHNY/2020 TO THE ASSESSING OFFICER, SO AS TO ENABLE TO FILE M ISCELLANEOUS APPLICATION TO RESTORE THE APPEAL. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE A ND THE CO FILED BY THE ASSESSEE ARE DISMISSED AS WITHDRAWN. ORDER PRONOUNCED ON 05 TH JANUARY, 2021 AT CHENNAI. SD/- ( . ) (DUVVURU RL REDDY) /JUDICIAL MEMBER SD/- ( ) (S. JAYARAMAN) /ACCOUNTANT MEMBER /CHENNAI, + /DATED: 05 TH JANUARY, 2021 JPV &-./0/ /COPY TO: 1. 2 / APPELLANT 2. -42 /RESPONDENT 3. 5 ) ( /CIT(A) 4. 5 /CIT 5. /- /DR 6. 8 /GF