Spine Arthroscopic and Joint Replacement Centre Pvt Ltd., Coimbatore V. DCIT, Coimbatore

ITA 1112/CHNY/2016

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 2262 (ITAT-CHENNAI)
• Duration Of Justice: 4 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 25-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: K RAGHU
• Keywords: Competent authority; Condonation of delay
• Section: 6

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: CHENNAI . . , . , BEFORE SHRI DUVVURU R.L. REDDY, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NOS.1112 TO 1114/CHNY/2016 /ASSESSMENT YEARS: 2008-09 TO 2010-11 M/S.SPINE ARTHROSCOPIC & JOINT- REPLACEMENT CENTRE PVT. LTD., NO.657, TRICHY ROAD, SINGANALLUR, COIMBATORE-641 005. VS. THE DY. COMMISSIONER OF- INCOME TAX, CENTRAL CIRCLE-1, COIMBATORE. [PAN: AAFCS 0339 A] ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR.K. RAGHU, CA /RESPONDENT BY : MR.SURESH PERIASAMY, JCIT /DATE OF HEARING : 18.02.2021 /DT. OF PRONOUNCEMENT : 18.02.2021 / O R D E R PER SHRI DUVVURU R.L. REDDY, JUDICIAL MEMBER: THESE APPEALS FILED BY THE ASSESSE ARE DIRECTED AG AINST ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-18, CH ENNAI, IN ITA NOS.468, 469 & 595 DATED 03.02.2016 FOR THE ASSESSM ENT YEARS 2008-09 TO 2010-11. 2. WE HAVE HEARD THE COUNSELS FOR THE ASSESSEES AN D THE LD. DR AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AT T HE TIME OF HEARING, LEARNED COUNSELS FOR THE ASSESSEES HAVE MADE A STA TEMENT AT BAR THAT THE ITA NOS.1112-1114 /CHNY/2016 :- 2 -: ASSESSEES WANTS TO UTILIZE THE DIRECT TAXES VIVAD SE VISHWAS SCHEME, 2020 TO SETTLE PENDING DISPUTE RELATING TO DIRECT TAXES AND IN THIS REGARD SOME OF ASSESSEES HAVE FILED FORM NO 1 AND 2 AND A WAITING FORM NO. 3 FROM THE DESIGNATED AUTHORITY. IN SOME CASES, THE A SSESSEES HAVE RECEIVED FORM NO. 3 FROM THE DESIGNATED AUTHORITY A ND IN SOME CASES, THE ASSESSEE HAVE FILED LETTER AND EXPRESSED THEIR WILL INGNESS TO FILE FORM NO. 1 AND 2 BEFORE THE DESIGNATED AUTHORITY. 3. 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 17TH MARCH, 2020 AND BECAME DIRECT TAXES VIVAD SE VISHWAS ACT, 2020. AS PER THE SAID SCHEME, ASSESSEES ARE ALLOWE D TO SETTLE DIRECT TAX DISPUTE IN A MANNER AND PROCEDURE PRESCRIBED THEREI N BY FILING NECESSARY DECLARATION AND UNDERTAKING. THE SCHEME HAS ALSO SP ECIFIED THE AMOUNT OF TAXES, INTEREST, AND PENALTY, IF ANY PAYABLE UNDER THE ACT. IF AN ASSESSEE FILED A DECLARATION AND PAY SPECIFIED TAXES AS PER THE SCHEME AND WITHDRAW THE APPEAL PENDING BEFORE THE APPELLATE AUTHORITIES, THE DESIGNATED AUTHORITY SHALL PASS AN ORDER IN FORM 5 CONFIRMING PAYMENT MADE UNDER THE SCHEME AND GRANT IMMUNITY FROM PENA LTY AND PROSECUTION. ITA NOS.1112-1114 /CHNY/2016 :- 3 -: 4. IN THESE PRESENT APPEALS, SOME ASSESSEES HAVE F ILED DECLARATION IN FORM NO.1 ALONG WITH UNDERTAKING WAIVING RIGHTS FOR ANY REMEDY IN FORM NO. 2 TO THE DESIGNATED AUTHORITY AND HAS ALSO RE CEIVED FORM 3. IN SOME CASES, FORM NO 1 AND 2 HAS BEEN FILED AND AWAI TING FORM NO. 3 FROM THE DESIGNATED AUTHORITY AND IN SOME CASES, THE ASS ESSEES HAVE EXPRESSED THEIR WILLINGNESS TO FILE FORM NO. 1 AND 2 AND SETTLE THEIR DISPUTE UNDER THE SCHEME. THEREFORE, ONCE THE ASSESSEES IN TEND TO FILE A DECLARATION IN FORM NO.1 ALONG WITH UNDERTAKING AND EXPRESSED THEIR WILLINGNESS TO SETTLE PENDING DISPUTES REGARDING DI RECT TAXES, THEN THERE IS NO POINT IN KEEPING APPEAL FILED BY THE ASSESSEES. WE, FURTHER NOTED THAT RECENTLY THE HONBLE JURISDICTIONAL HIGH COURT OF MADRAS HAS CONSIDERED AN IDENTICAL APPLICATION FILED BY AN ASSESSEE IN THE CASE OF M/S. NANNUSAMY MOHAN (HUF) VS. ACIT IN T.C.A NO.372 OF 2 020 FOR AVAILING THE BENEFIT OF VIVAD SE VISHWAS SCHEME, 2020, W HERE THE HONBLE HIGH COURT HAS DISMISSED THE APPEAL FILED BY THE PETITI ONER AS WITHDRAWN, BUT ALLOWED LIBERTY TO THE ASSESSEE TO RESTORE THE APP EAL IN THE EVENT THE DESIGNATED AUTHORITY FOR ANY REASON REJECT APPLICAT ION FILED BY THE ASSESSEE UNDER SECTION 4 OF THE ACT. THE RELEVANT P ORTIONS OF THE OBSERVATIONS OF THE HONBLE HIGH COURT OF MADRAS VI DE ORDER DATED 16.10.2020 ARE EXTRACTED AS UNDER:- 2. WE HAVE HEARD MR.M.P.SENTHIL KUMAR, LEARNED C OUNSEL APPEARING FOR THE APPELLANT/ASSESSEE AND MR.T.R.SENTHIL KUMAR, LEARNED SENIOR STANDING COUNSEL AND MS. K.G.USHA RANI, LEARNED COUNSEL FOR THE RESPONDENT/REVENUE. 3. THE LEARNED COUNSEL FOR THE APPELLANT / ASSESSEE , ON INSTRUCTIONS, SUBMITTED THAT THE APPELLANT / ASSESSEE INTENDS TO AVAIL THE BENEFIT OF ITA NOS.1112-1114 /CHNY/2016 :- 4 -: VIVAD SE VISHWAS SCHEME (VVS SCHEME' FOR BREVITY) AND IN THIS REGARD, THE ASSESSEE IS TAKING STEPS TO FILE THE APPLICATIO N / 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 ACCOUN T OF CERTAIN SUBSEQUENT DEVELOPMENTS. THE GOVERNMENT OF INDIA EN ACTED THE DIRECT TAX VIVAD SE VISHWAS ACT, 2020 (ACT 3 OF 2020) TO P ROVIDE FOR RESOLUTION OF DISPUTED TAX AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO. THE ACT OF THE PARLIAMENT RECEIVED THE ASSENT OF TH E 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 GIVEN AN OPTION TO PUT AN END TO THE TAX DISPUTES, WHICH MAY BE PENDING AT DIFFERENT LEVELS EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL OR BEFORE THE HIGH COURT OR BEFORE THE HON'BLE SUPREME COURT OF I NDIA. UNDER SECTION 2(J) 'DISPUTED TAX' HAS BEEN DEFINED. IN TERMS OF S ECTION 3, WHERE A DECLARANT MEANS A PERSON, WHO FILES A DECLARATION U NDER SECTION 4 ON OR BEFORE THE LAST DATE FILES A DECLARATION TO THE DES IGNATED AUTHORITY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4 IN RESP ECT OF TAX ARREARS, THEN, NOTWITHSTANDING ANYTHING CONTAINED IN THE INCOME TA X ACT OR ANY OTHER LAW FOR THE TIME BEING IN FORCE, THE AMOUNT PAYABLE BY THE DECLARANT SHALL BE DETERMINED IN TERMS OF SECTION 3(A-C) THEREUNDER . 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 INCOME TAX AUTHORITY ON ANY ISSUE BEFORE THE APPELLATE FORUM, THE AMOUNT PAYABLE SHALL BE ONE-HALF OF THE AMOUNT IN THE TABLE STIPULATED IN S ECTION 3 CALCULATED ON SUCH ISSUE, IN SUCH A MANNER AS MAY BE PRESCRIBED. THE SECOND PROVISO DEALS WITH THE CASES, WHERE THE MATTER IS BEFORE TH E COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RESOLUTION PANEL. T HE THIRD PROVISO DEALS WITH CASES, WHERE THE ISSUE IS PENDING BEFORE THE I NCOME TAX APPELLATE TRIBUNAL. THE FILING OF THE DECLARATION IS AS PER S ECTION 4 OF THE ACT AND THE PARTICULARS TO BE FURNISHED ARE ALSO MENTIONED IN T HE SUB SECTIONS OF SECTION 4. SECTION 5 OF THE ACT DEALS WITH THE TIME AND MANNER OF THE PAYMENT AND SECTION 6 DEALS WITH IMMUNITY FROM INIT IATION OF PROCEEDINGS IN RESPECT OF OFFENCE AND IMPOSITION OF PENALTY IN CERTAIN CASES. SECTION 9 OF THE ACT DEALS WITH CASES, WHERE THE ACT 3 OF 202 0 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 DECL ARATION TO BE FILED BY THE ASSESSEE UNDER SECTION 4 OF THE SAID ACT IS NOT IN FAVOUR OF THE ASSESSEE. IF SUCH A PRAYER IS MADE, THE REGISTRY SH ALL ENTERTAIN THE PRAYER WITHOUT INSISTING 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 MISCELLANEOUS PETITION FOR RESTORATION, TH E REGISTRY 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 AUTHORITY SHALL PROCESS THE APPLICATION / DECLARATION IN ACCORDANCE WITH THE ACT AND PASS APPROPRIATE ORDERS AS EXPEDITIOUSLY AS POSSIBLE PRE FERABLY WITHIN A PERIOD ITA NOS.1112-1114 /CHNY/2016 :- 5 -: OF SIX (6) WEEKS FROM THE DATE ON WHICH THE DECLARA TION IS FILED IN THE PROPER FORM. 5. IN THE LIGHT OF THE ABOVE DECISION OF THE HONBL E HIGH COURT OF MADRAS, AND BY TAKING NOTE OF THE FACT THAT SOME ASSESSEES HAVE ALREADY FILED DECLARATION IN FORM NO.1 ALONG WITH FORM NO.2 TO THE DESIGNATED AUTHORITY AND RECEIVED FORM 3 AND SOM E ASSESSEES HAD ALREADY FILED FORM NOS.1 & 2 AND AWAITING FORM NO. 3 FROM THE DESIGNATED AUTHORITY AND ALSO THE FACT THAT REMAINING ASSESSEE S ARE WILLING TO FILE FORM NOS.1 AND 2 WITHIN THE DUE DATE PRESCRIBED FOR THIS PURPOSE, WE DISMISS THE APPEALS FILED BY THE ASSESSEES AS W ITHDRAWN. HOWEVER, A LIBERTY IS GIVEN TO THE ASSESSEES TO RESTORE THE APPEALS, IN THE EVENT OF THE DESIGNATED AUTHORITY, FOR ANY REASON REJECT TH E APPLICATION FILED BY THE ASSESSEE UNDER SECTION 4 OF THE SAID ACT. WE, FURTHER MAKE IT CLEAR THAT IN A CASES WHERE THE APPEAL IS FILED BY THE RE VENUE AND THE ASSESSEES HAVE FOR ANY REASON OPTED OUT FROM THE S CHEME OR THE APPLICANTS UNDER THE SCHEME MISREPRESENTS ANY FACTS WHICH RESULTED IN REJECTION OF APPLICATION FILED UNDER THE SCHEME, TH EN THE PROVISIONS OF SECTION 4(6) OF THE ACT, SHALL BE APPLICABLE TO ALL APPEALS AND IN SUCH CASES, ALL THE PROCEEDINGS AND CLAIMS WHICH WERE WI THDRAWN UNDER SECTION 4 AND ALL THE CONSEQUENCES UNDER THE INCOME-TAX ACT AGAINST THE DECLARANT SHALL BE DEEMED TO HAVE BEEN REVIVED. WE, FURTHER MAKE IT CLEAR THAT THE ASSESSEES SHOULD PROMPTLY INFORM THE ASSE SSING OFFICER ABOUT THEIR DECISION TO OPT OUT OF THE SCHEME OR REJECTIO N OF APPLICATION BY THE ITA NOS.1112-1114 /CHNY/2016 :- 6 -: DESIGNATED AUTHORITY TO THE ASSESSING OFFICER, SO A S TO ENABLE TO FILE MISCELLANEOUS APPLICATION TO RESTORE THE APPEAL. 6. IN THE RESULT, THE ABOVE APPEALS FILED BY THE AS SESSEE ARE DISMISSED AS WITHDRAWN. ORDER PRONOUNCED ON THE 18 TH DAY OF FEBRUARY, 2021, IN CHENNAI. SD/- SD/- ( . ) (S. JAYARAMAN) /ACCOUNTANT MEMBER ( . . ) (DUVVURU R.L. REDDY) /JUDICIAL MEMBER /CHENNAI, /DATED: 18 TH FEBRUARY, 2021. TLN ! /COPY TO: 1. /APPELLANT 4. $ /CIT 2. /RESPONDENT 5. /DR 3. $ ( ) /CIT(A) 6. /GF