M/S. COMFORT SECURITIES LTD., MUMBAI V. ACIT, CC-1(4), MUMBAI

ITA 1255/MUM/2023

AI Insights

The case involves M/s Comfort Securities Ltd., the appellant, contesting the dismissal of their appeal by the Commissioner of Income-tax (Appeals) - 47, Mumbai. The dismissal was based on the grounds that the appellant had opted for the Vivad Se Vishwas Scheme, which the appellant argued was incorrectly applied to their appeal concerning an assessment order under section 147 of the Income Tax Act, 1961. The appellant had previously opted for the scheme concerning a different assessment order under section 143(3) of the Act, for which they had received a Form No. 5. The Tribunal's decision to set aside the CIT(A)'s finding was based on the clarification that the Vivad Se Vishwas Scheme application did not extend to the appeal concerning the section 147 order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123780 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 04-07-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 12-04-2023
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “SMC” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND MS. KAVITHA RAJAGOPAL (JUDICIAL MEMBER) ITA No. 1255/MUM/2023 Assessment Year: 2016-17 M/s Comfort Securities Ltd., A 301, Hetal Arch, Opp. Natraj Market, S V Road, Malad (W), Mumbai-400064. Vs. ACIT, Central Circle-1(4), Room No. 902, 9 th floor, Pratishtha Bhavan, Old CGO Building, M.K. Road, Mumbai-400020. PAN NO. AABCC 9625 R Appellant Respondent Assessee by : Vishwas Mehendale Revenue by : Ms. Indira Adakil, DR Date of He aring : 05/07/2023 Date of p ronounceme nt : 10/07/2023 ORDER PER OM PRAKASH KANT, AM This appeal has been preferred by the assessee against order dated 19.09.2020 passed by the Ld. Commissioner of Income-tax (Appeals)-47, Mumbai for assessment year 2016-17, raising following grounds: “1. The Commissioner of Income-tax (Appeals) - 47, Mumbai (hereinafter referred to as the CIT(A)) erred in dismissing appeal of appellant on ground that appellant has opted for Vivad Se Vishwas Scheme. M/s Comfort Securities Ltd. 2 ITA No. 1255/Mum/2023 The appellant contends that CIT(A) has not appreciated the facts of case in its entirety, that appellant has opted for Vivad Se Vishwas Scheme against appeal pending before him which was made against assessment order passed u/s 143(3) of the Income Tax Act 1961 by Asst. Commissioner of Income Tax Central Circle 1(4), Mumbai dtd 28.12.2018 for which appellant has specifically opted for Vivad Se Vishwas Scheme and necessary Form - 5 was issued by Pr. CIT (Central) - 1, Mumbai on 01.11.2021 and CIT(A) on the basis of the said Form 5 dismissed the said appeal on 15.07.2022. The appellant further contends that CIT(A) has grossly erred in dismissing appeal filed by appellant against assessment order passed us 147 of the Income Tax Act 1961 dtd 30.03.2022 on the ground that appellant has opted for Vivad Se Vishwas Scheme, without acknowledging fact that appellant has opted for Vivad Se Vishwas Scheme for assessment order passed under section 143(3) and not for order passed under section 147 of the Income Tax Act 1961, thereby dismissing appeal on factually incorrect ground.” 2. At the outset, the Ld. Counsel of the assessee submitted that in the year under consideration, the assessee has preferred two appeals before the Ld. CIT(A), the first appeal was arising assessment order u/s 143(3) of the Income-tax Act (in short ‘the Act’) and the second appeal was arising from the order passed u/s 147 of the Act. The Ld. Counsel of the assessee further submitted that the assessee with reference to the appeal arising order u/s 143(3) of the Act opted for Vivad Se Vishwas Scheme and paid corresponding taxes and the Department issued the relevant Form No. 5. However, he further submitted that the Ld. CIT(A) in the year under consideration has wrongly considered this appeal of the assessee which was filed against order u/s 147 of the act as Vivad M/s Comfort Securities Ltd. 3 ITA No. 1255/Mum/2023 Se Vishwas Scheme and therefore, he dismissed the appeal of the assessee. 3. We have heard rival submission of the parties and perused the relevant material on record. On perusal of the Form No. 5 submitted by the assessee before us, we find that under Vivad Se Vishwas Scheme, the appeal having reference No. CIT(A) as 4102304481180119. The Ld. Counsel of the assessee has filed relevant Form No. 35 of the appeal filed in respect of assessment order passed u/s 143(3) of the Act. Thus, it is evident that assessee has opted for Vivad Se Vishwas Scheme in respect of said appeal preferred against order u/s 143(3) of the Act and not in respect of appeal arising from section 147 of the Act, which was pending before the Ld. CIT(A). The finding of the Ld. CIT(A) is based on the bona fide mistake. Therefore, we feel it appropriate to set aside the finding of the Ld. CIT(A) and restore the appeal back to the Ld. CIT(A) for deciding afresh in accordance with law. The grounds of appeal of the assessee are accordingly allowed. 4. In the result, the appeal filed by the assessee is allowed. Order pronounced in the open Court on 10/07/2023. Sd/- Sd/- (KAVITHA RAJAGOPAL) (OM PRAKASH KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 10/07/2023 M/s Comfort Securities Ltd. 4 ITA No. 1255/Mum/2023 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, //True Copy// (Assistant Registrar) ITAT, Mumbai