PAWAN M. BANSAL, MUMBAI V. INCOME TAX OFFICER, WARD 16(3)(3), MUMBAI

ITA 1963/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3855 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 28-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRE EKULA PARDESHI
• Keywords: Question of law; Competent authority; Condonation of delay
• Section: 143(3); 271D

Judgement Text

C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI , , BEFORE SRI MAHAVIR SINGH, VP AND SRI RAJESH KUMAR , AM ./ ITA NO. 1963 / MUM / 2018 ( / ASSESSMENT YEARS 2009 - 10 ) PAWA N M BANSAL 201, 2 ND FLOOR, SALASAR, DEEP, 90 FEET ROAD NEAR SHIV MANDIR, BHYANDER (W), MUMBAI / VS. THE INCOME TAX OFFICER WARD 16(3)(3), MUMBAI ( / APPELLANT) ( / RESPONDENT) . / PAN NO. ACAPB 6079 Q / APPELLANT BY : NONE / RESPONDENT BY : MS. SHRE EKULA PARDESHI, DR / DATE OF HEARING : 04.10. 2020 / DATE OF PRONOUNCEMENT : 04.10. 2020 / O R D E R , / PER MAHAVIR SINGH, VP : THIS APPEAL OF ASSESSEE IS ARISING OUT OF THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)] - 2, THANE [IN SHORT CIT(A)], IN ITA NO. 556/2014 - 15 DATED 31 .01.2018. THE ASSESSMENT WAS FRAMED BY THE INCOME TAX OFFICER (IN SHORT ITO/ AO) FOR THE A. Y . 2009 - 10 VIDE PAGE | 2 ITA NO. 1963/MUM/2018 PAWAN M BANSAL; AY 09 - 10 ORDER DATED 26.12.2011 UNDER SECTION 143(3) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER THE ACT). 2. THE ASSESSEE HAS RAISED ARGUMENTATIVE GROUNDS IN THI S APPEAL RUNNING INTO 5 PAGES. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE ACTION OF JOINT COMMISSIONER OF INCOME TAX, RANGE - 3, THANE LEVYING PENALTY UNDER SECTION 271D OF THE ACT FOR RECEIVING CASH AMOUNTING TO 2,22,770/ - FROM VARIOUS PARTIES AS LOAN IN VIOLATION OF THE PROVISION OF SECTION 269SS OF THE ACT. 3. WE HAVE HEARD THE LEARNED SR. DEPARTMENTAL REPRESENTATIVE MS. SHREEKULA PARDESHI , JCIT AND ALSO PERUSED THE LETTER OF THE ASSESSEE DATED 24.10.2020, WHICH WAS RECEIVED ON 27.10.2020. IN THE LETTER, THE ASSESSEE HAS REQUESTED FOR AN ADJOURNMENT BY STATING AS UNDER: - IN THIS REGARD WOULD TO MENTION THAT I HAVE DECIDED TO AVAIL BENEFIT OF VIVAD SE VISWAS SCHEME, 2020 AND HAS FILED AN APPLICATION UNDER THE VIVAD SE VISWAS SCHEME, 2020 ANNOUNCED BY HONOURABLE FINANCE MINISTER IN THE BUDGET 2020 ON 05 TH FEB 2020. I THEREFORE REQUEST YOUR HONOURABLE OFFICE TO ADJOURN HEARING AGAINST OUR SAID APPEAL NO 1963/M/2018 TILL THE DISPOSAL OF OUR APPLICATION FILED UNDER THE VIVAD SE VISHWAS SCHEME, 2020. FOR YOU READY REFERENCE ENCLOSING HEREWITH THE COPY OF APPLICATION OF FORM 1 AND FORM 2 E - FILED PAGE | 3 ITA NO. 1963/MUM/2018 PAWAN M BANSAL; AY 09 - 10 ONLINE UNDER THE VIVAD SE VISH WAS SCHEME, 2020 WITH ITS ACKNOWLEDGEMENT. ALSO PHOTOCOPY ACKNOWLEDGEMENT OF FORM 36 FILED WI TH YOUR HONOURABLE OFFICE. 4. WE FIND THAT THE ASSESSEE HAS ENCLOSED THE COPY OF APPLICATION OF FORM NO.1 AND FORM NO. 2 E - FILE D ONLINE UNDER THE VIVAD SE VISWAS SCHEME - 2020 FOR FILED BEFORE THE COMPETENT AUTHORITY. WE NOTED THAT ONCE THE ASSESSEE HAS OPTE D FOR VIVAD SE VISWAS SCHEME - 2020 AND FILE D FORM - 1 AND FORM 2 UNDER THE VIVAD SE VISWAS SCHEME - 2020 WITH THE COMPETENT AUTHORITY, IT IS NOT NECESSARY FOR THE TRIBUNAL TO DECIDE THE ABOVE RAISED ISSUE AS THE GOVT. OF INDIA HAS ENACTED THE DIRECT TAX VIV AD SE VISWAS SCHEME ACT 2020 TO PROVIDE FOR RESOLUTION OF DISPUTE MECHANISM IN REGARD TO DIRECT TAX DISPUTES AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO. IN TERM 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 INCLUDING THE INCOME TAX APPELLATE TRIBUNAL. UNDER SECTION 25 OF THE DIRECT TAX VIVAD SE VISWAS SCHEME - 2020 DISPUTED TAX HAS BEEN DEFINED AND ALSO IN T ERM OF SECTION 3, A DECLARANT MEANS A PERSON WHO HAS FILED A DECLARATION ON OR BEFORE THE LAST DATE WITH DECLARATION BEFORE DESIGNATED OR COMPETENT AUTHORITY IN ACCORDANCE WITH THE PROVISION S OF SECTION 4 IN RESPECT OF TAX ARREARS. THEN, NOTWITHSTANDING ANY THING WITH THE INCOME TAX ACT, 1961 OR ANOTHER LAW F OR THE TIME BEING IN FORCE , T HE AMOUNT PAYABLE BY THE DECLARANT SHALL BE DETERMINED IN TERMS OF SECTION 3 OF DIRECT TAX VIVAD SE VISWAS SCHEME ACT 2020 . 5. WE NOTED THAT THIS ISSUE HAS BEEN ADJUDICATED BY HON'BLE HIGH COURT OF MADRASS IN THE CASE OF NANNUSA MY MOHAN (HUF) VS. ACIT IN PAGE | 4 ITA NO. 1963/MUM/2018 PAWAN M BANSAL; AY 09 - 10 I.C.A. NO.372 OF 2020 DATED 16.10.2020, WHEREIN HON'BLE HIGH COURT AFTER CONSIDERING THE INTENT OF THE ASSESSEE TO AVAIL THE BENEFIT OF VIVAD SE VISWAS SCHEME - 2020 HAS DISMISSED THE APPEAL BY OBSERVING IN PARA 7 TO 9 AS UNDER : - 7. AS OBSERVED, THE ASSESSEE IS GIVEN LIBERTY TO RESTORE 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 ENTERTAIN THE PRAYER WITHOUT INSISTING UPON ANY APPLICATION TO BE FILED FOR CONDONATION OF DELAY IN RESTORATION OF THE APPEAL AND ON SUCH REQUEST MADE BY THE ASSESSEE BY FILING A MISCELLANEOUS PETITION FOR RESTORATION, THE REGISTRY SHA LL PLACE SUCH PETITION BEFORE THE DIVISION BENCH FOR ORDERS. 8. IN THE LIGHT OF THE ABOVE, WE DIRECT THE APPELLANT/ ASSESSEE TO FILE THE FORM NO.I 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 PREFERABLY WITHIN A PERIOD OF 6 (6) WEEKS FROM THE DATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FORM. 9. WITH THIS DECLARATION, THE TAX CASE APPEAL STANDS DISPOSED OF WITH THE A FOREMENTIONED LIBERTY PAGE | 5 ITA NO. 1963/MUM/2018 PAWAN M BANSAL; AY 09 - 10 AND CONSEQUENTLY THE SUBSTANTIAL QUESTION OF LAW ARE LEFT UPON. NO COSTS. 6. IN THE LIGHT OF THE VIEW TAKEN BY HONBLE MADRASS HIGH COURT CITED (SUPRA) , WE ALSO GIVE LIBERTY TO THE ASSESSEE TO GET THE APPEAL RESTORED IN THE EVENT THAT T HE ASSESSEE DOES NOT SUCCEED ON THE DECLARATION FILED BY THE ASSESSEE IN THE FORM NO.1 AND FORM NO. 2 OF THE DIRECT TAX VIVAD SE VISWAS SCHEME - 2020. IN OTHER WORDS IF THE ASSESSEES DECLARATION IS NOT ACCEPTED BY THE REVENUE, THE ASSESSEE CAN MAKE A PRAYER BEFORE THE BENCH FOR RECALLING OF THE ORDER BY FILING A MISCELLANEOUS APPLICATION FOR RESTORATION OF APPEAL. THE REGISTRY WILL PLACE SUCH PETITION BEFORE THE BENCH CONCERN ED . 7. IN VIEW OF THE FACT S THAT THE ASSESSEE HAS FILED FORM NO.1 AND FORM NO. 2 UNDER DI RECT TAX VIVAD SE VISWAS SCHEME - 2020, WE DISMISS THIS APPEAL OF ASSESSEE WITH THE AFOREMENTIONED L IBERTY TO GET THE APPEAL RECALLED, IN THE EVENTUALITY THE ASSESSEE DECLARATION IS NOT ACCEPTED BY THE REVENUE. 8. IN THE R ESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 04.11.2020 SD/ - SD/ - ( / RAJESH KUMAR ) ( /MAHAVIR SINGH) ( / ACCOUNTANT MEMBER) ( / VICE PRESIDENT ) , / MUMBAI, DATED: 04.11.2020 , . / SUDIP SARKAR, SR.PS PAGE | 6 ITA NO. 1963/MUM/2018 PAWAN M BANSAL; AY 09 - 10 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (ASSTT. REGISTRAR) , / ITAT, MUMBAI