MAHEDRA JIVRAJ JAIN HUF, MUMBAI V. ITO 15(1)(1), MUMBAI

ITA 1255/MUM/2015

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1889 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 03-03-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR SUNIL DESH
• Assessee Lawyers: SANJIV M SHAH
• Section: 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 1255/MUM/2015 ASSESSMENT YEAR : 2009-10 MAHENDRA JIVRAJ JAIN HUF, 29, MANIPAR HOUSE, 1 ST FLOOR, PARSI WADA LANE, MUMBAI 400 004. PAN : AADHJ7669H (APPELLANT) VS . INCOME TAX OFFICER 1 5 (1)( 1 ), MUMBAI. (RESPONDENT) ITA NO. 363/MUM/2015 ASSESSMENT YEAR : 2009-10 JEEVRAJ U JAIN HUF, FLAT NO.27, KHEMRAJ BHAVAN, 7 TH KHETWADI LANE, KHETWADI BACK ROAD, MUMBAI 400 004. PAN : AADHJ8990B (APPELLANT) VS . INCOME TAX OFFICER 1 5 (1)( 1 ), MUMBAI. (RESPONDENT) APPELLANT BY : SHRI SANJIV M SHAH REVENUE BY : DR SUNIL DESHPANDE DATE OF HEARING :1.12.2020 DATE OF PRONOUNCEMENT : 04 .12.2020 [ O R D E R THESE APPEALS BY TWO ASSESSEES BELONGING TO THE SAM E GROUP ARE DIRECTED AGAINST RESPECTIVE ORDERS OF LEARNED CIT(A)-26, MU MBAI [IN SHORT THE CIT(A)] DATED FOR ASSESSMENT YEAR 2009-10. 2. THE GROUNDS OF APPEAL RELATE TO ADDITION ON ACCO UNT OF BOGUS CAPITAL GAIN. 3. AT THE OUTSET, IT IS NOTED THAT BY A WRITTEN SUB MISSION IT IS STATED THAT ASSESSEES HAVE OPTED FOR SOLUTION OF DISPUTE UNDER THE VIVAD SE VISHWAS SCHEME. HE FURTHER 2 ITA NOS.1255 & 363/MUM/2015 MAHENDRA JIVRAJ JAIN HUFJEEVRAJ U JAIN HUF STATES THAT FORM 1 AND 2 HAVE ALREADY FILED AND A C OPIES OF THE SAME ARE PRODUCED BEFORE US. 4. WE NOTE THAT IN A SIMILAR SITUATION, HON'BLE MAD RAS HIGH COURT HAS IN AN APPEAL IN THE CASE OF M/S. NANNUSAMY MOHAN (HUF) VS ACIT VIDE ORDER DATED 16.10.2020 HELD AS UNDER :- 3. THE LEARNED COUNSEL FOR THE APPELLANT / ASSESSE E, 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 APPLICATION / DECLARATION IN FORM NO. I. 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 ENACTED THE D IRECT TAX VIVAD SE VISHWAS ACT, 2020 (ACT 3 OF 2020) TO PROVIDE FOR RE SOLUTION OF DISPUTED TAX AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL T HERETO. THE ACT OF THE PARLIAMENT RECEIVED THE ASSENT OF THE PRESIDENT ON 17 TH MARCH 2020 AND PUBLISHED IN THE GAZETTE OF INDIA ON 17 TH 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 PENDIN G AT DIFFERENT LEVELS EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BEFO RE THE TRIBUNAL OR BEFORE THE HIGH COURT OR BEFORE THE HON'BLE SUPREME COURT OF INDIA. 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 PA YABLE 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 PROV ISO DEALS WITH THE CASES, WHERE THE MATTER IS BEFORE THE COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RESOLUTION PANEL. THE THIRD PROVISO DEALS W ITH CASES, WHERE THE ISSUE IS PENDING BEFORE THE INCOME TAX APPELLATE TRIBUNAL . THE FILING OF THE DECLARATION IS AS PER SECTION 4 OF THE ACT AND THE PARTICULARS TO BE FURNISHED 3 ITA NOS.1255 & 363/MUM/2015 MAHENDRA JIVRAJ JAIN HUFJEEVRAJ U JAIN HUF ARE ALSO MENTIONED IN THE SUB SECTIONS OF SECTION 4 . SECTION 5 OF THE ACT DEALS WITH THE TIME AND MANNER OF THE PAYMENT AND S ECTION 6 DEALS WITH IMMUNITY FROM INITIATION OF PROCEEDINGS IN RESPECT OF OFFENCE AND IMPOSITION OF PENALTY IN CERTAIN CASES. SECTION 9 OF THE ACT D EALS 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 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 MADE BY THE ASSESSEE BY FILING A MISCELLANEOUS PETITION FOR RESTORATION, THE REGIS TRY SHALL PLACE SUCH PETITION BEFORE THE DIVISION BENCH FOR ORDERS. 8. IN THE LIGHT OF THE ABOVE, WE DIRECT THE APPELLA NT / ASSESSEE TO FILE THE FORM NO.I ON OR BEFORE 20.11.2020 AND THE COMPE TENT 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 DECLARATIO N IS FILED IN THE PROPER FORM. ACCORDINGLY, RESPECTFULLY FOLLOWING THE ABOVE AND N OTING THE FACT THAT THE ASSESSEES ARE OPTING FOR RESOLUTION OF DISPUTE UNDER VIVAD SE VISHWAS SCHEME , WE TREAT THESE APPEALS BEING DISPOSED OFF AS WITHDRAWN. 5. THE ASSESSEES ARE GIVEN LIBERTY FOR RESTORATION OF APPEALS IN ACCORDANCE WITH PARAGRAPH 7 OF THE HON'BLE HIGH COURT ORDER AS ABOV E. BOTH THE PARTIES FAIRLY AGREED TO THE ABOVE PROPOSITION. 6. IN THE RESULT, THESE APPEALS ARE DISPOSED OF BY TREATING THE SAME AS WITHDRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST DECEMBER, 2020. S D / - S D / - (PAWAN KUMAR GADALE) JUDICIAL MEMBER (SHAMIM YAHYA) ACCOUNTANT MEMBER MUMBAI, DATE : 4 TH DECEMBER, 2020 SA 4 ITA NOS.1255 & 363/MUM/2015 MAHENDRA JIVRAJ JAIN HUFJEEVRAJ U JAIN HUF COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. THE CIT 5. THE DR, D BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI