ITO Non Corporate Ward 7(2), CHENNAI V. Dharmaraj Rajamani, CHENNAI

ITA 2031/CHNY/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 7805 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 25-03-2021
• Assessment Year: 2013-2014
• Appeal Filed On: 25-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHNY; C O NO CHNY
• Keywords: Competent authority; Condonation of delay
• Section: 6

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , D B ENCH, CHENNAI . , . , & BEFORE SHRI V.DURGA RAO , JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER S. NO ITA NO. ASSTT YEAR APPELLANT/ DEPARTMENT RESPONDENT/CROSS OBJECTOR APPELLANT BY RESPONDENT BY 1 -2 2031/CHNY/2018 & C.O.NO. 31/CHNY/2019 (ITA NO.2031/CHNY/2018) 2013-14 INCOME TAX OFFICER , NON-CORPORATE WARD-7(2), CHENNAI. MR.DHARMARAJ RAJAMANI, AP 2007, VASANTHAM COLONY, 2 ND CROSS STREET, ANNA NAGAR WEST, CHENNAI-40. PAN:AFTPR 0244K MS.R.ANITA, JCIT MR.S.SRIDHAR, ADVOCATE 3-4 3224/CHNY/2018 & C.O.NO. 72/CHNY/2019 (ITA NO.3224/CHNY/2018) 2010-11 THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-1(2), CHENNAI. M/S.BYD ELECTRONICS INDIA PVT.LTD DEVELOPED PLOT NO.OZ-7 SPICOT SEZ, ORAGADAM, SRIPERUMBUDUR, KANCHEEPURAM-602 105 PAN: AADCB 0819N MS.R.ANITA, JCIT MR .GAUTHAM FOR MR.R.SIVARAMAN, ADVOCATE /DATE OF HEARING : 25.03.2021 /DATE OF PRONOUNCEMENT : 25.03.2021 / O R D E R PER G.MANJUNATHA, AM: THESE TWO APPEALS AND CROSS OBJECTIONS FILED BY DIFFERENT REVENUE AND ASSESSEES RESPECTIVELY ARE DIRECTED A GAINST ORDERS OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), C HENNAI OF EVEN DATED 26.04.2018 / 16.08.2018 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 2 ITA NO.2031/CHNY/2018 & C.O.NO.31/CHNY/2019 & ITA NO.3224/CHNY/2018 & C.O.NO.72/CHNY/2019 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 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 NO.2031/CHNY/2018 & C.O.NO.31/CHNY/2019 & ITA NO.3224/CHNY/2018 & C.O.NO.72/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 AVAILING THE BENEFIT OF VIVAD SE VISHWAS SCHEME, 2020, WHERE THE 4 ITA NO.2031/CHNY/2018 & C.O.NO.31/CHNY/2019 & ITA NO.3224/CHNY/2018 & C.O.NO.72/CHNY/2019 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 / ASSESS EE 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. 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 CONN ECTED THEREWITH OR INCIDENTAL THERETO. THE ACT OF THE PARLIAMENT RE CEIVED 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 PEN DING 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 INDIA. UNDER SECTION 2(J) 'DISPUTE D TAX' HAS BEEN DEFINED. IN TERMS OF SECTION 3, WHERE A DECLAR ANT MEANS A PERSON, WHO FILES A DECLARATION UNDER SECTION 4 ON OR BEFORE THE LAST DATE FILES A DECLARATION TO THE DESIGNATED AUT HORITY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4 IN RESP ECT OF TAX ARREARS, THEN, NOTWITHSTANDING ANYTHING CONTAINED I N THE INCOME TAX ACT OR ANY OTHER LAW FOR THE TIME BEING IN FORC E, THE AMOUNT PAYABLE BY THE DECLARANT SHALL BE DETERMINED IN TER MS OF SECTION 3(A-C) THEREUNDER. 5 ITA NO.2031/CHNY/2018 & C.O.NO.31/CHNY/2019 & ITA NO.3224/CHNY/2018 & C.O.NO.72/CHNY/2019 6. THE FIRST PROVISO TO SECTION 3 STATES THAT IN C ASE WHERE AN APPEAL OR WRIT PETITION OR SPECIAL LEAVE PETITION I S FILED BY THE INCOME TAX AUTHORITY ON ANY ISSUE BEFORE THE APPELL ATE FORUM, THE AMOUNT PAYABLE SHALL BE ONE-HALF OF THE AMOUNT IN THE TABLE STIPULATED IN SECTION 3 CALCULATED ON SUCH ISSUE, I N SUCH A MANNER AS MAY BE PRESCRIBED. THE SECOND PROVISO DEALS WITH THE CASES, WHERE THE MATTER IS BEFORE THE COMMISSIONER (APPEAL S) OR BEFORE THE DISPUTE RESOLUTION PANEL. THE THIRD PROVISO DEA LS WITH CASES, WHERE THE ISSUE IS PENDING BEFORE THE INCOME TAX AP PELLATE TRIBUNAL. THE FILING OF THE DECLARATION IS AS PER SECTION 4 OF THE ACT AND THE PARTICULARS TO BE FURNISHED ARE ALSO MENTIO NED IN THE SUB SECTIONS OF SECTION 4. SECTION 5 OF THE ACT DEALS W ITH THE TIME AND MANNER OF THE PAYMENT AND SECTION 6 DEALS WITH IMMU NITY FROM INITIATION OF PROCEEDINGS IN RESPECT OF OFFENCE AND IMPOSITION OF PENALTY IN CERTAIN CASES. SECTION 9 OF THE ACT DEAL S 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 T HE DECLARATION TO BE FILED BY THE ASSESSEE UNDER SECTION 4 OF THE SAI D ACT IS NOT IN FAVOUR OF THE ASSESSEE. IF SUCH A PRAYER IS MADE, T HE REGISTRY SHALL ENTERTAIN THE PRAYER WITHOUT INSISTING UPON ANY APP LICATION TO BE FILED FOR CONDONATION OF DELAY IN RESTORATION OF TH E APPEAL AND ON SUCH REQUEST MADE BY THE ASSESSEE BY FILING A MISCE LLANEOUS PETITION 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 COMPETENT AUTHORITY SHALL PROCESS THE APPLICATION / DECLARATI ON IN ACCORDANCE WITH THE ACT AND PASS APPROPRIATE ORDERS AS EXPEDIT IOUSLY AS POSSIBLE PREFERABLY WITHIN A PERIOD OF SIX (6) WEEK S FROM THE DATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FOR M. 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 6 ITA NO.2031/CHNY/2018 & C.O.NO.31/CHNY/2019 & ITA NO.3224/CHNY/2018 & C.O.NO.72/CHNY/2019 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 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 NO.2031/CHNY/2018 & C.O.NO.31/CHNY/2019 & ITA NO.3224/CHNY/2018 & C.O.NO.72/CHNY/2019 6. IN THE RESULT, BOTH THE APPEALS FILED BY THE REV ENUE ARE DISMISSED AS WITHDRAWN, AS SUCH CROSS OBJECTIONS FI LED BY THE ASSESSEES HAVE BECOME INFRUCTUOUS AND SAME ARE ALSO DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH MARCH, 2021 SD/- SD/- ( . ) ( . ) (V.DURGA RAO) ( G.MANJUNATHA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /CHENNAI, /DATED 25 TH MARCH , 2021 DS ! $! /COPY TO: 1. APPELLANT 2. RESPONDENT 3. % () /CIT(A) 4. % /CIT 5. ! + /DR 6. . /GF .