RAMPRASAD, CHENNAI V. ITO, NCW - 15 (3), CHENNAI

ITA 1792/CHNY/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 7210 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 10-06-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G CHANDRABABU
• Keywords: Condonation of delay
• Section: 6

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A B ENCH, CHENNAI . , ! . , ! ' BEFORE SHRI DUVVURU RL REDDY, JUDICIAL MEMBER AND SHRI G.MANJUNATHA, ACCOUNTANT MEMBER ./ I.T.A NOS. 1792 & 1793/CHNY/2019 ( / ASSESSMENT YEARS: 2009-10 & 2012-13) MR. RAMPRASAD, 2, 1 ST FLOOR, DHANDEESWARAM, 9 TH MAIN ROAD, VELACHERRY, CHENNAI-600 042. VS THE INCOME TAX OFFICER, NON-CORPORATE WARD-15(3) CHENNAI. PAN:AEDPR 6535E ( /APPELLANT) /RESPONDENT/ / APPELLANT BY : MR. SAROJ KUMAR PARIDA, ADVOCATE /RESPONDENT BY : MR. G.CHANDRABABU, ADDL. CIT /DATE OF HEARING : 18.01.2021 /DATE OF PRONOUNCEMENT : 18.01.2021 / O R D E R PER G.MANJUNATHA, AM: THESE TWO APPEALS FILED BY ASSESSEE ARE DIRECTED AGAINST COMMON ORDER OF THE LEARNED CIT(A)-15, CHENNAI, D ATED 27.03.2019 AND PERTAIN TO ASSESSMENT YEARS 2009-10 AND 2012-13 RESPECTIVELY. 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 2 ITA NOS. 1792 & 1793/CHNY/2019 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 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. 3 ITA NOS. 1792 & 1793/CHNY/2019 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 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 4 ITA NOS. 1792 & 1793/CHNY/2019 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 KU MAR, LEARNED SENIOR STANDING COUNSEL AND MS. K.G.USHA RANI, L EARNED 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 AP PLICATION / 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 202 0) TO PROVIDE FOR RESOLUTION OF DISPUTED TAX AND FOR MATTERS CONNECTE D THEREWITH OR INCIDENTAL THERETO. THE ACT OF THE PARLIAMENT RECEI VED THE ASSENT OF THE 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 PENDIN G AT DIFFERENT LEVELS EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL OR BEFORE THE HIGH COURT OR BEFORE THE HON'BLE SUPR EME COURT OF INDIA. UNDER SECTION 2(J) 'DISPUTED TAX' HAS BEEN DEFINED. IN TERMS OF SECTION 3, WHERE A DECLARANT MEANS A PERSON, WHO FILES A DE CLARATION UNDER SECTION 4 ON OR BEFORE THE LAST DATE FILES A DECLAR ATION TO THE DESIGNATED AUTHORITY IN ACCORDANCE WITH THE PROVISI ONS OF SECTION 4 IN RESPECT OF TAX ARREARS, THEN, NOTWITHSTANDING ANYTH ING CONTAINED IN THE 5 ITA NOS. 1792 & 1793/CHNY/2019 INCOME TAX 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 TABL E STIPULATED IN SECTION 3 CALCULATED ON SUCH ISSUE, IN SUCH A MANNE R AS MAY BE PRESCRIBED. THE SECOND PROVISO DEALS WITH THE CASES , WHERE THE MATTER IS BEFORE THE COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RESOLUTION PANEL. THE THIRD PROVISO DEALS WITH CASE S, 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 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 SECTION 6 DEALS WITH IMMUNITY FROM INITIATION OF PR OCEEDINGS IN RESPECT OF OFFENCE AND IMPOSITION OF PENALTY IN CERTAIN CAS ES. SECTION 9 OF THE ACT DEALS 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 A CT IS NOT IN FAVOUR OF THE ASSESSEE. IF SUCH A PRAYER IS MADE, THE REGISTR Y SHALL ENTERTAIN THE PRAYER WITHOUT INSISTING UPON ANY APPLICATION TO BE FILED FOR CONDONATION OF DELAY IN RESTORATION OF THE APPEAL A ND ON SUCH REQUEST MADE BY THE ASSESSEE BY FILING A MISCELLANEOUS PETI TION FOR RESTORATION, THE 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 COMPE TENT AUTHORITY SHALL PROCESS THE APPLICATION / DECLARATION IN ACCO RDANCE WITH THE ACT AND PASS APPROPRIATE ORDERS AS EXPEDITIOUSLY AS POS SIBLE PREFERABLY WITHIN A PERIOD OF SIX (6) WEEKS FROM THE DATE ON W HICH THE DECLARATION 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 6 ITA NOS. 1792 & 1793/CHNY/2019 HAD ALREADY FILED FORM NO 1 & 2 AND AWAITING FORM N O. 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 DATE 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 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. 7 ITA NOS. 1792 & 1793/CHNY/2019 6. IN THE RESULT, APPEALS FILED BY ASSESSEE FOR ASS ESSMENT YEARS 2009-10 AND 2012-13 ARE DISMISSED AS WITHDRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH JANUARY, 2021 SD/- SD/- ( . ) ( . ) (DUVVURU RL REDDY) ( G.MANJUNATHA ) ' $ / JUDICIAL MEMBER $ / ACCOUNTANT MEMBER ' /CHENNAI, ' /DATED 18 TH JANUARY, 2021 DS )* +* /COPY TO: 1. APPELLANT 2. RESPONDENT 3. , () /CIT(A) 4. , /CIT 5. * 1 /DR 6. /GF .