M Peer Mohamed, Chennai V. ACIT, NCC-14(i/c), Chennai

ITA 1146/CHNY/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 7115 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 22-04-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: TO TO CHNY TO SMT A MANJU
• Keywords: Competent authority
• Section: 6

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A B ENCH, CHENNAI . , . , % BEFORE SHRI V.DURGA RAO , JUDICIAL MEMBER AND SHRI G.MANJUNATHA, ACCOUNTANT MEMBER S. NO ITA NO. ASSTT YEAR ASSESSEE / DEPARTMENT RESPONDENT APPELLANT BY RESPONDENT BY 1 TO 7 3121 TO 3127/CHNY/2019 2012-13 TO 2014-15 SMT.A. MANJULA L/H OF LATE A.S. ADHINARAYANAN M/S.KUMBAKONAM JEWELLERS , 184/385,BAZAAR STREET SALEM-636 001. PAN: ABQPA 3612H THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-I SALEM. NONE MR.G.CHANDRABABU, ADDL. CIT 8 1398/CHNY/2019 2014-15 MR.BHIKRAM NARAYANLAL, 128/82, NEHRU ROAD, B.V.NAGAR, SOUTH NANGANALLUR, CHENNAI-600 061. PAN:AABPN 0289P THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE- 1(2) CHENNAI. MR.N.VIJAY KUMAR, CA MR.S.BHARATH, CIT 9. 1397/CHNY/2019 2014-15 B.NARAYANLAL & SONS 128/82, NEHRU ROAD, B.V.NAGAR, SOUTH NANGANALLUR, CHENNAI-600 061. PAN: AAAHB 0501R THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE- 1(2) CHENNAI. MR.N.VIJAY KUMAR,CA MR.S.BHARATH, CIT 10 1146/CHNY/2019 2012-13 MR.M.PEER MOHAMED 5/1, 17 TH STREET, MOSQUE COLONY, MADUVANGARAI,GUINDY CHENNAI-600 032 . PAN: ANNPP7585K THE ASSISTANT COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE -14(I/C) CHENNAI. MR.I.DINESH, ADVOCATE MR.G.CHANDRABABU, ADDL. CIT 11 1387/CHNY/2019 2014-15 M/S. SPACES 7, CORPORATION BUIDING AROKYASAMY ROAD, R.S.PURAM, COIMBATORE-641 002. PAN: ABWFS 5851N THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE- 1, COIMBATORE. MR.S.SRIDHAR, ADVOCATE MR.G.CHANDRABABU, ADDL. CIT /DATE OF HEARING : 05.01.2021 /DATE OF PRONOUNCEMENT : 05.01.2021 / O R D E R PER BENCH: THIS BUNCH OF 11 APPEALS FILED BY DIFFERENT ASSES SEES ARE DIRECTED AGAINST ORDERS OF LEARNED COMMISSIONER OF INCOME TAX 2 (APPEALS), SALEM/CHENNAI /COIMBATORE OF EVEN DATE D 17.09.2019 /15.02.2019 /28/03/2019 /01.03.2019 FOR RESPECTIVE ASSESSMENT YEARS. 2. WE HAVE HEARD THE COUNSELS FOR THE ASSESSEES AN D THE LD. DR AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE TIME OF HEARING, LEARNED COUNSELS FOR THE ASSESSEES HAV E MADE A STATEMENT AT BAR THAT THE ASSESSEES WANTS TO UTI LIZE THE DIRECT TAXES VIVAD SE VISHWAS SCHEME, 2020 TO SETTLE PEN DING DISPUTE RELATING TO DIRECT TAXES AND IN THIS REGARD SOME OF ASSESSEES HAVE FILED FORM NO 1 AND 2 AND AWAITING FORM NO. 3 FROM THE DESIGNATED AUTHORITY. IN SOME CASES, THE ASSESSEES HAVE RECEI VED FORM NO. 3 FROM THE DESIGNATED AUTHORITY AND IN SOME CASES, TH E ASSESSEE HAVE FILED LETTER AND EXPRESSED THEIR WILLINGNESS T O 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 GOV ERNMENT OF INDIA HAS ANNOUNCED IN THE BUDGET, 2020, A DIRECT TAXES VIVAD SE VISHWAS SCHEME, 2020 TO SETTLE PENDING DISPUTE RELATING TO DIRECT TAXES AT VARIOUS APPELLATE FORUMS INCLUDI NG THE FIRST 3 APPELLATE AUTHORITY, TRIBUNAL, HIGH COURT AND SU PREME COURT. IN THIS REGARD, THE SCHEME HAS BEEN NOTIFIED ON 17 TH MARCH, 2020 AND BECAME DIRECT TAXES VIVAD SE VISHWAS ACT, 2020. A S PER THE SAID SCHEME, ASSESSEES ARE ALLOWED TO SETTLE DIRECT TAX DISPUTE IN A MANNER AND PROCEDURE PRESCRIBED THEREIN BY FILING N ECESSARY DECLARATION AND UNDERTAKING. THE SCHEME HAS ALSO SP ECIFIED THE AMOUNT OF TAXES, INTEREST, AND PENALTY, IF ANY PAYA BLE UNDER THE ACT. IF AN ASSESSEE FILED A DECLARATION AND PAY SPECI FIED TAXES AS PER THE SCHEME AND WITHDRAW THE APPEAL PENDING BEFOR E THE APPELLATE AUTHORITIES, THE DESIGNATED AUTHORITY SHALL PASS AN ORDER IN FORM 5 CONFIRMING PAYMENT MADE UNDER THE SCHEME AND GRA NT IMMUNITY FROM PENALTY AND PROSECUTION. 4. IN THESE PRESENT APPEALS, SOME ASSESSEES HAVE F ILED DECLARATION IN FORM NO.1 ALONG WITH UNDERTAKING WAI VING RIGHTS FOR ANY REMEDY IN FORM NO. 2 TO THE DESIGNATED AUTHORIT Y AND HAS ALSO RECEIVED FORM 3. IN SOME CASES, FORM NO 1 AND 2 H AS BEEN FILED AND AWAITING FORM NO. 3 FROM THE DESIGNATED AUTHORI TY AND IN SOME CASES, THE ASSESSEES HAVE EXPRESSED THEIR WILLINGN ESS TO FILE FORM NO. 1 AND 2 AND SETTLE THEIR DISPUTE UNDER THE SCHE ME. THEREFORE, ONCE THE ASSESSEES INTEND TO FILE A DECLARATION IN FORM NO.1 ALONG 4 WITH UNDERTAKING AND EXPRESSED THEIR WILLINGNESS TO SETTLE PENDING DISPUTES REGARDING DIRECT TAXES, THEN THERE IS NO P OINT IN KEEPING APPEAL FILED BY THE ASSESSEES. WE, FURTHER NOTED THAT RECENTLY THE HONBLE JURISDICTIONAL HIGH COURT OF MADRAS HAS C ONSIDERED 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, WHERE THE HONBLE HIGH COURT HAS DISMISSED 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 PORTIONS OF THE OBSERVATIONS OF THE HONBL E HIGH COURT OF MADRAS VIDE 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 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. 5 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 C ASE 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 SECTION 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 SHALL ENTERT AIN THE PRAYER WITHOUT INSISTING UPON ANY APPLICATION TO BE FILED FOR COND ONATION 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 OF SIX (6) WEEKS FROM THE DATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FORM. 6 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 NO. 1 & 2 AND AWAITING FORM NO. 3 FROM THE DESIGNATED AUTHORITY AND ALSO THE FACT THAT REMAINI NG ASSESSEES ARE WILLING TO FILE FORM NO. 1 AND 2 WITHIN THE DUE DAT E PRESCRIBED FOR THIS PURPOSE, WE DISMISS THE APPEALS FILED BY THE ASSES SEES AS WITHDRAWN. HOWEVER, A LIBERTY IS GIVEN TO THE ASSES SEES TO RESTORE THE APPEALS, IN THE EVENT OF THE DESIGNATED AUTH ORITY, FOR ANY REASON REJECT THE 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 REVENUE AND THE ASSESSEES H AVE FOR ANY REASON OPTED OUT FROM THE SCHEME OR THE APPLICANTS UNDER THE SCHEME MISREPRESENTS ANY FACTS WHICH RESULTED IN RE JECTION OF APPLICATION FILED UNDER THE SCHEME, THEN THE PROVIS IONS OF SECTION 4(6) OF THE ACT, SHALL BE APPLICABLE TO ALL APPEALS 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. WE, FURTHER MAKE IT 7 CLEAR THAT THE ASSESSEES SHOULD PROMPTLY INFORM TH E ASSESSING OFFICER ABOUT THEIR DECISION TO OPT OUT OF THE SCHE ME OR REJECTION OF APPLICATION BY THE DESIGNATED AUTHORITY TO THE ASSE SSING OFFICER, SO AS TO ENABLE TO FILE MISCELLANEOUS APPLICATION TO R ESTORE THE APPEAL. 6. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEE ARE DISMISSED AS WITHDRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH JANUARY, 2021 SD/- SD/- ( . ) ( . ) (V.DURGA RAO) ( G.MANJUNATHA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /CHENNAI, /DATED 5 TH JANUARY, 2021 DS ! $! /COPY TO: 1. APPELLANT 2. RESPONDENT 3. % () /CIT(A) 4. % /CIT 5. ! + /DR 6. . /GF .