DIPTI ENTERPRISE ,MUMBAI V. INCOME TAX OFFICER WARD 33(1)(4), MUMBAI

ITA 1653/MUM/2025

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The case involves Dipti Enterprises appealing against the order of the CIT(A) which dismissed their appeal on the grounds that the assessee had opted for the Direct Tax Vivad Se Vishwas Act, 2020, and thus the pending appeal was considered infructuous. The assessee contended that they did not pay the required amount as per the Act, rendering their application void ab initio. The Income Tax Appellate Tribunal (ITAT) found that the CIT(A) erred in dismissing the appeal without considering the non-payment and restored the case for re-evaluation on its merits.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 314277 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2014-2015
• Laws Referred To: Direct Tax Vivad Se Vishwas Act, 2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: GOVINDRAO J. NINAWE; DR
• Assessee Lawyers: DEVENDRA JAIN; AR
• Keywords: Opportunity of being heard; Cost of acquisition; Principle of natural justice

Judgement Text

"| आयकर अपीलीय अिधकरण ा यपीठ, मुंबई | IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, HON’BLE VICE PRESIDENT & SHRI NARENDRA KUMAR BILLAIYA, HON’BLE ACCOUNTANT MEMBER I.T.A. No. 1653/Mum/2025 Assessment Year: 2014-15 Dipti Enterprises Office No. 203, Shree Niketan 120 New Link Road Kandivali (W) Mumbai - 400067 [PAN: AAEFD3992J] Vs Income Tax Officer, Ward – 33(1)(4), Mumbai अपीला थ\u0016/ (Appellant) \u0017\u0018 यथ\u0016/ (Respondent) Assessee by : Shri Devendra Jain, A/R Revenue by : Shri Govindrao J. Ninawe, Sr. D/R सुनवाई की तारीख/Date of Hearing : 08/05/2025 घोषणा की तारीख /Date of Pronouncement: 08/05/2025 आदेश/O R D E R PER NARENDRA KUMAR BILLAIYA, AM: This appeal by the assessee is preferred against the order of the ld. CIT(A)/Addl./JCIT(A)-3, Kolkata [hereinafter “the ld. CIT(A)”] dated 01/01/2025 pertaining to AY 2014-15. 2. The grievance of the assessee reads as under:- “1. In the facts and circumstances of the case and in law, Learned Commissioner of Income Tax (Appeals) [hereinafter also referred to as 'the CIT(A)] has erred in dismissing the appeal citing the reason that the Appellant had opted to avail benefit of the Direct Tax Vivad Se Vishwas Act, 2020; hence the impugned pending appeal before the said CIT(A) stood infructuous -this was in utter disregards to the fact and law that because Appellant did not pay the amount as required by the said Act and Form-5 was never issued to the Appellant, the application in From-1 itself was void-ab-initio pursuant to provisions of section 4(6)(b) of the said Act which presumes that no declaration was ever made by the Appellant. 2. In the facts and circumstances of the case and in law, the Learned CIT(A), erred in dismissing the appeal without considering or reverting the adjournment request of the Appellant thereby grossly violating the principles of natural justice. I.T.A. No. 1651/Mum/2025 2 3. In the facts and circumstances of the case and in law, the Learned CIT(A), erred in upholding the action of the Ld. Assessing Officer of making additions of Rs. 55,50,000/ - disregarding the factual and legal matrix of the case. 4. Without prejudice to the above, in the facts and circumstances of the case and in law, the Learned CIT(A), erred in upholding the action of the La. Assessing Officer of making additions of Rs. 55,50,000/- in respect of a property registered during the year without allowing the deduction in respect of the cost of acquisition amounting to Rs. 11,01,759/- of the said property. 5. Without prejudice to the above, in the facts and circumstances of the case and in law, the Learned CIT(A), erred in upholding the action of the Ld. Assessing Officer of making additions of Rs. 1,87,44,874/- to the book profit and computing tax thereon pursuant to the provisions of section 115JC (Alternate Minimum Tax whereas the said provisions were inapplicable to the Appellant. 6. In the facts and circumstances of the case and in law, the Learned CIT(A), erred in upholding the action of the Ld. Assessing Officer in not granting credit for Tax Deducted at Source under section 194IA of Rs. 55,500/; while determining the amount of demand (in the tax computation sheet). 7. In the facts and circumstances of the case and in law, the Learned CIT(A), erred in upholding the action of the Ld. Assessing Officer in not granting credit for Tax Deducted at Source under section 194IA of Rs. 90,000/- in respect of the sale proceeds included in Total Income of the appellant. 8. The appellant craves leave to add, alter, delete or modify all or any of the above grounds of appeal. All the above grounds are without prejudice to each other.” 3. Briefly stated the facts of the case are that the assessee had opted to avail benefit of the Direct Tax Vivad Se Vishwas Act, 2020 and accordingly filed requisite forms and Form No. 3 was issued by the PCIT, Mumbai- 17. Therefore, the ld. CIT(A) was of the firm belief that upon filing the declaration, any appeal pending before the ITAT or CIT(A), in respect of the disputed income shall be deemed to have been withdrawn from the date on which certificate under sub-Section (1) of Section 5 of the Direct Tax Vivad Se Vishwas Act, 2020, is issued by the designated authority. 4. However, the assessee though opted for Direct Tax Vivad Se Vishwas Act, 2020, but did not pay the disputed tax which makes sub- I.T.A. No. 1651/Mum/2025 3 Section (6) to Section 4 of the Direct Tax Vivad Se Vishwas Act, 2020, applicable and the same reads as under:- “(6) The declaration under sub-section (I) shall be presumed never to have been made if, - (a) any material particular furnished in the declaration is found to be false at any stage; (b) the declarant violates any of the conditions referred to in this Act; (c) the declarant acts in any manner which is not in accordance with the undertaking given by him under sub-section (5), and in such cases, all the proceedings and claims which were withdrawn under section 4 and all the consequences under the Income-tax Act against the declarant shall be deemed to have been revived. 5. In light of the aforementioned Section, all the consequences under the Income-tax Act against the declarant shall be deemed to have been revived. 6. Therefore, in light of the above, the appeal is restored to the file of the ld. CIT(A) with a direction to decide the appeal on merits of the case after affording a reasonable and adequate opportunity of being heard to the assessee. 7. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the Court on 8th May, 2025 at Mumbai. Sd/- Sd/- (SAKTIJIT DEY) (NARENDRA KUMAR BILLAIYA) VICE-PRESIDENT ACCOUNTANT MEMBER Mumbai, Dated 08/05/2025 *SC SrPs *SC SrPs *SC SrPs *SC SrPs I.T.A. No. 1651/Mum/2025 4 आदेश की \u0017ितिलिप अ ेिषत/Copy of the Order forwarded to : 1. अपीला थ\u0016 / The Appellant 2. \u0017 थ\u0016 / The Respondent 3. संबंिधत आयकर आयु! / Concerned Pr. CIT 4. आयकर आयु! ) अपील ( / The CIT(A)- 5. िवभा गीय \u0017ितिनिध ,आयकर अपीलीय अिधकरण, मुंबई /DR,ITAT, Mumbai, 6. गाड' फाई/ Guard file. आदेशानुसार/ BY ORDER TRUE COPY Assistant Registrar आयकर अपीलीय अिधकरण ITAT, Mumbai "