SHRI M.K. MATHIVATHANAN, CHENNAI V. ACIT, CORPORATE CIRCLE - 4 (2), CHENNAI

ITA 2191/CHNY/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 5438 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 25-07-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reasonable cause; Competent authority; Condonation of delay
• Section: 43

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: CHENNAI , , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI G. MANJUNATHA , ACCOUNTAN T MEMBER SL. NO. I.T.A. NO ASSTT YEAR ASSESSEE & PAN RESPONDENT APPELLANT BY RESPONDENT BY [1] 43/CHNY/2019 2015 2016 SHRI. K. MATHIVATHANAN, NO.91/15, EAST JONES ROAD, SAIDAPET, CHENNAI 600 015. PAN: AAIPM 6121E THE DY. COMMISSIONER OF INCOME TA X, CORPORATE CIRCLE 4 (2), CHENNAI 600 034 MR. S. SRIDHAR, ADVOCATE MR. CHANDRA - BABU, ADDITIONAL CIT [2] 1529/CHNY/2019 2004 2005 SHRI. K. MATHIVATHANAN, NO.91/15, EAST JONES ROAD, SAIDAPET, CHENNAI 600 015. PAN: AAIPM 6121E THE ASSISTANT COMM ISSIONER OF INCOME TAX, CORPORATE CIRCLE 4 (2), CHENNAI 600 034 MR. S. SRIDHAR, ADVOCATE MR. CHANDRA - BABU, ADDITIONAL CIT [ 3 ] 2191/CHNY/2019 2005 2006 SHRI. K. MATHIVATHANAN, NO.91/15, EAST JONES ROAD, SAIDAPET, CHENNAI 600 015. PAN: AAIPM 6121 E THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 4 (2), CHENNAI 600 034 MR. S. SRIDHAR, ADVOCATE MR. CHANDRA - BABU, ADDITIONAL CIT [ 4 ] 1923/CHNY/2017 2007 2008 SHRI RAJAH SUNDER SINGH PRATAP SINGH, NO.46, MARIADOSS STREET, ROYAPURAM, CH ENNAI 600 013 PAN: AAFPR 5074E THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 6(1), CHENNAI 600 034 MR. S. SRIDHAR, ADVOCATE MR. CHANDRA - BABU, ADDITIONAL CIT [5 ] 69/CHNY/2020 2010 2011 M/S. ASEPTIC SYSTEMS BIO - MEDICAL WASTE MANAGEM ENT COMPANY, NO.65, 5 TH CROSS STREET, N.G.O. COLONY, TIRUNELVELI - 627 007 PAN: AAOFA 0044Q INCOME TAX OFFICER, WARD 1, TIRUCHENDUR ROAD, RAHMATH NAGAR, TIRUNELVELI 627 011 MR. I. DINESH, ADVOCATE MR. CHANDRA - BABU, ADDITIONAL CIT [6 ] 70/CHNY/2020 2011 2012 M/S. ASEPTIC SYSTEMS BIO - MEDICAL WASTE MANAGEMENT COMPANY, NO.65, 5 TH CROSS STREET, N.G.O. COLONY, TIRUNELVELI - 627 007 PAN: AAOFA 0044Q INCOME TAX OFFICER, WARD 1, TIRUCHENDUR ROAD, RAHMATH NAGAR, TIRUNELVELI 627 011 MR. I. DINESH, ADVOCATE MR. C HANDRA - BABU, ADDITIONAL CIT I . T . A NO S. 43 /CHNY/2019 & OTHERS : - 2 - : [7 ] 71/CHNY/2020 2012 2013 M/S. ASEPTIC SYSTEMS BIO - MEDICAL WASTE MANAGEMENT COMPANY, NO.65, 5 TH CROSS STREET, N.G.O. COLONY, TIRUNELVELI - 627 007 PAN: AAOFA 0044Q INCOME TAX OFFICER, WARD 1, TIRUCHENDUR ROAD, RAHMATH NA GAR, TIRUNELVELI 627 011 MR. I. DINESH, ADVOCATE MR. CHANDRA - BABU, ADDITIONAL CIT [8 ] 72/CHNY/2020 2014 2015 M/S. ASEPTIC SYSTEMS BIO - MEDICAL WASTE MANAGEMENT COMPANY, NO.65, 5 TH CROSS STREET, N.G.O. COLONY, TIRUNELVELI - 627 007 PAN: AAOFA 0044Q INCOM E TAX OFFICER, WARD 1, TIRUCHENDUR ROAD, RAHMATH NAGAR, TIRUNELVELI 627 011 MR. I. DINESH, ADVOCATE MR. CHANDRA - BABU, ADDITIONAL CIT [9 ] 361/CHNY/2020 2010 - 2011 MR. HEMRAJ CHOUDHARI, HEMS INDIA, 46, TNHB COMPLEX, 180, LUZ CHURCH ROAD, CHENNAI 600 0 04 PAN: AACPC 4721A THE ASSISTANT COMMISSIONER OF INCOME TAX, NCC 1 [1], CHENNAI 600 034 MS. LAKSHMI CHAND NAHATA, C.A MR. CHANDRA - BABU, ADDITIONAL CIT [10 ] 362/CHNY/2020 2013 - 2014 MR. HEMRAJ CHOUDHARI, HEMS INDIA, 46, TNHB COMPLEX, 180, LUZ CHUR CH ROAD, CHENNAI 600 004 PAN: AACPC 4721A THE ASSISTANT COMMISSIONER OF INCOME TAX, NCC 1 [1], CHENNAI 600 034 MS. LAKSHMI CHAND NAHATA, C.A MR. CHANDRA - BABU, ADDITIONAL CIT [1 1 ] 287/CHNY/2020 2007 2008 M/S. M.J. PRATHAP SINGH, NEW NO.35, OL D NO.15, M.S. KOIL STREET, ROYAPURAM, CHENNAI 600 013. PAN: AAFPA 5422K THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE - II(I), CHENNAI 600 034 MR. S. SRIDHAR, ADVOCATE MR. CHANDRA - BABU, ADDITIONAL CIT [12 ] 288/CHNY/2020 2007 2008 M/S. J.P. SAMPRASAD, NO.1/5, VAIDYANATHAN STREET, TONDIARPET, CHENNAI 600 0 81 . PAN: AA VPS 5727M THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE - II(I), CHENNAI 600 034 MR. S. SRIDHAR, ADVOCATE MR. CHANDRA - BABU, ADDITIONAL CIT / DATE OF HEARING : 05.01.2021 / DATE OF PRONOUNCEMENT : 05.01.2021 I . T . A NO S. 43 /CHNY/2019 & OTHERS : - 3 - : / O R D E R PER BENCH : TH E S E BUNCH OF APPEALS FILED BY DIFFERENT A SSESSEES ARE DIRECTED AGAINST ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEA LS), CHENNAI OF EVEN DATED 11.10.201 8 , 31.03.2019, 19.06.2019, 29.05.2017, 18.10.2019, 18.10.2019, 18.10.2019, 14.12.2018, 19.03.2019, 04.12.2019, 04.12.2019 FOR RESPECTIVE ASSESSMENT YEARS. 2. AT THE OUTSET, WE FIND THAT APPEALS FILED BY ASSESSEES IN T HE ABOVE CASES ARE TIME BARRED BY LIMITATION FOR WHICH NECESSARY PETITION FOR CONDONATION OF DELAY ALONG WITH AFFIDAVIT EXPLAINING THE REASONS FOR THE DELAY HAVE BEEN FILED. THE LEARNED COUNSELS SUBMITTED THAT ASSESSEES COULD NOT FILE APPEALS W ITHIN THE TIME ALLOWED UNDER THE ACT, THEREFORE DELAY MAY BE CONDONED. HAVING HEARD BOTH SIDES AND CONSIDERED THE PETITIONS FILED BY THE ASSESSEES FOR CONDONATION OF DELAY, WE ARE OF THE CONSIDERED VIEW THAT REASONS GIVEN BY ASSESSEES FOR NOT FILING T HE APPEALS WITHIN THE TIME ALLOWED UNDER THE ACT COMES UNDER REASONABLE CAUSE AS PROVIDED UNDER THE ACT FOR CONDONATION OF DELAY AND HENCE, DELAY IN FILING OF ABOVE APPEALS ARE CONDONED AND APPEALS FILED BY THE ASSESSEES ARE ADMITTED FOR ADJUDICATI ON. 3 . WE HAVE HEARD THE COUNSELS FOR THE ASSESSEES AND THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE TIME OF HEARING, LEARNED C OUNSELS FOR THE ASSESSEES HAVE MADE A STATEMENT AT BAR THAT THE ASSESSE ES WANT TO UTILIZE THE DIRECT TAXES VIVAD SE VISHWAS SCHEME, 2020 TO SETTLE PENDING DISPUTE RELATING TO DIRECT TAXES AND IN THIS REGARD SOME OF ASSESSEES HAVE FILED FORM NO 1 AND 2 AND AWAITING FOR F ORM N O. 3 FROM THE DESIGNATED I . T . A NO S. 43 /CHNY/2019 & OTHERS : - 4 - : AUTHORITY. IN SOME CASES, THE ASSESSEES HAVE RECEIVED FORM NO. 3 FROM THE DESIGNATED AUTHORITY AND IN SOME CASES, THE ASSESSEE HAVE FILED LETTER AND EXPRE SSED THEIR WILLINGNESS TO FILE F ORM NO. 1 AND 2 BEFORE THE DESIGNATED AUTHORITY. 4 . THE BENCH HAS CONSIDERED RIVAL CON TENTIONS OF BOTH SIDES AND AFTER HEARING BOTH PARTIES, WE FOUND THAT THE GOVERNMENT 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 INCLUDING THE FIRST APPELLATE AUTHORITY, TRIBUNAL, HIGH COURT AND SUPREME COURT. IN THIS REGARD, THE SCHEME HAS BEEN NOTIFIED ON 17 TH MARCH, 2020 AND BECAME DIRECT TAXES VIVAD SE VISHWAS ACT, 2020. AS PER THE SAID SCHEME, ASSESSEES ARE ALLOW ED TO SETTLE DIRECT TAX DISPUTE IN A MANNER AND PROCEDURE PRESCRIBED THEREIN BY FILING NECESSARY DECLARATION AND UNDERTAKING. THE SCHEME HAS ALSO SPECIFIED THE AMOUNT OF TAXES, INTEREST, AND PENALTY, IF ANY PAYABLE UNDER THE ACT. IF AN ASSESSEE FILED A D ECLARATION AND PAY SPECIFIED TAXES AS PER THE SCHEME AND WITHDRAW THE APPEAL PENDING BEFORE THE APPELLATE AUTHORITIES, THE DESIGNATED AUTHORITY SHALL PASS AN ORDER IN FORM 5 CONFIRMING PAYMENT MADE UNDER THE SCHEME AND GRANT IMMUNITY FROM PENA LTY AND PROSECUTION. 5 . IN THESE PRESENT APPEALS, SOME OF THE ASSESSEES HAVE FILED DECLARATION IN FORM NO.1 ALONG WITH UNDERTAKING WAIVING RIGHTS FOR ANY REMEDY IN FORM NO. 2 TO THE DESIGNATED AUTHORITY AND HAS ALSO RECEIVED FORM 3. IN SOME CASES, F ORM N O . 1 AND 2 HA VE BEEN FILED AND AWAITING F ORM N O. 3 FROM THE DESIGNATED AUTHORITY AND IN SOME CASES, THE ASSESSEES HAVE EXPRESSED THEIR WILLINGNESS TO FILE FORM NO. 1 AND 2 AND I . T . A NO S. 43 /CHNY/2019 & OTHERS : - 5 - : SETTLE THEIR DISPUTE UNDER THE SCHEME. THEREFORE, ONCE THE ASSESSEES INTEN D 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 POINT IN KEEPING APPEAL FILED BY THE ASSESSEES. WE, FURTHER NOTED THAT RECENTLY THE HONBLE J URISDICTIONAL HIGH COURT OF MADRAS HAS CONSIDERED 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 2020 FOR AVAILING THE BENEFIT OF VIVAD SE VISHWAS SCHEME, 2020, WHERE THE HONBL E 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 HONBLE HIGH COURT OF MADRAS VIDE ORDER DATED 16.10.2020 ARE EXTRACTED AS UNDER: - 2. WE HAVE HEARD MR.M.P.SENTHIL KUMAR, LEARNED COUNSEL 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 / ASSESSEE INTENDS TO AVAIL THE BENEFIT OF V IVAD 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 CONSI DERATION ON ACCOUNT OF CERTAIN SUBSEQUENT DEVELOPMENTS. THE GOVERNMENT OF INDIA ENACTED THE DIRECT TAX VIVAD SE VISHWAS ACT, 2020 (ACT 3 OF 2020) TO PROVIDE FOR RESOLUTION OF DISPUTED TAX AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO. THE ACT O F THE PARLIAMENT RECEIVED THE ASSENT OF THE PRESIDENT ON 17TH I . T . A NO S. 43 /CHNY/2019 & OTHERS : - 6 - : 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 PENDING 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) 'DISPUTED TAX' HAS BEEN DEFINED. IN TERMS OF SECTION 3, WHERE A DECLARANT MEAN S A PERSON, WHO FILES A DECLARATION UNDER SECTION 4 ON OR BEFORE THE LAST DATE FILES A DECLARATION TO THE DESIGNATED AUTHORITY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4 IN RESPECT OF TAX ARREARS, THEN, NOTWITHSTANDING ANYTHING CONTAINED IN THE 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 CASE WHERE AN APPEAL OR WRIT PETITION OR SPECIAL LEAVE P ETITION 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 TABLE STIPULATED IN SECTION 3 CALCULATED ON SUCH ISSUE, IN SUCH A MANNER AS MAY BE PRESCRIBED. THE SECOND PROVIS O DEALS WITH THE CASES, WHERE THE MATTER IS BEFORE THE COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RESOLUTION PANEL. THE THIRD PROVISO DEALS WITH 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 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 PROCEEDINGS IN RES PECT OF OFFENCE AND IMPOSITION OF PENALTY IN CERTAIN CASES. 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 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 I . T . A NO S. 43 /CHNY/2019 & OTHERS : - 7 - : APPLICATION TO BE FILED FOR CONDONATION O F DELAY IN RESTORATION OF THE APPEAL AND ON SUCH REQUEST MADE BY THE ASSESSEE BY FILING A MISCELLANEOUS 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 APPELLANT / ASSESSEE TO FILE THE FORM NO.1 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 SIX (6) WEEKS FROM THE DATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FORM. 6 . IN THE LIGHT OF THE ABOVE DECISION OF THE HONBLE HIGH COURT OF MADRAS, AND BY TAKING NOTE OF THE FACT THAT SOME ASSESSEES HAVE ALREADY FILED DECLARATION IN FORM N O.1 ALONG WITH FORM NO.2 TO THE DESIGNATED AUTHORITY AND RECEIVED FORM NO. 3 AND SOME A SSESSEES HAD ALREADY FILED FORM N O . 1 & 2 AND AWAITING F ORM N O. 3 FROM THE DESIGNATED AUTHORITY AND ALSO THE FACT THAT THE REMAINING A SSESSEES ARE WILLING TO FILE FO RM NO. 1 AND 2 WITHIN THE DUE DATE PRESCRIBED FOR THIS PURPOSE, WE DISMISS THE APPEALS FILED BY EACH OF THE A SSESSEES , SUPRA, AS WITHDRAWN. HOWEVER, LIBERTY IS GIVEN TO THE A SSESSEES TO RESTORE THE APPEALS, IN THE EVENT OF THE DESIGNATED AUTHORITY, FOR ANY REASON REJECT THE APPLICATION FILED BY THE ASSESSEE UNDER S ECTION 4 OF THE SAID ACT. WE, FURTHER MAKE IT CLEAR THAT IN A CASE WHERE THE APPEAL IS FILED BY THE REVENUE AND THE ASSESSEES HAVE FOR ANY REASON OPTED OUT FROM THE SCHEME OR THE APPLICA NTS UNDER THE SCHEME MISREPRESENT ANY FACT WHICH RESULTED IN REJECTION OF APPLICATION FILED UNDER THE SCHEME, THEN THE PROVISIONS OF SECTION 4(6) OF THE ACT, SHALL BE APPLICABLE TO ALL SUCH APPEALS AND IN SUCH CASES, ALL THE PROCEEDINGS AND THE CLAIMS WHIC H WERE WITHDRAWN UNDER SECTION 4 AND ALL THE CONSEQUENCES UNDER THE I . T . A NO S. 43 /CHNY/2019 & OTHERS : - 8 - : INCOME - TAX ACT AGAINST THE DECLARANT SHALL BE DEEMED TO HAVE BEEN REVIVED. WE, FURTHER MAKE IT C LEAR THAT THE ASSESSEES SHOULD PROMPTLY INFORM THE ASSESSING OFFICER ABOUT THEIR DECISION TO OPT OUT OF THE SCHEME OR REJECTION OF APPLICATION BY THE DESIGNATED AUTHORITY TO THE ASSESSING OFFICER, SO AS TO ENABLE TO FILE MISCELLANEOUS APPLICATION TO RESTO RE THE APPEAL. 7 . IN THE RESULT, ALL THE APPEALS FILED BY THE ASSESSEE AS WELL AS THE REVENUE ARE DISMISSED AS WITHDRAWN. ORDER PRONOUNCED ON 5 TH J ANUARY, 2021 IN CHENNAI. SD/ - ( ) ( G. MANJUNATHA ) /ACCOUNTANT MEMBER SD/ - ( ) ( V. DURGA RAO ) /JUDICIAL MEMBER / CHENNAI, / DATED: 5 TH JANUARY, 2021 IA , SR. P.S /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. () /CIT(A) 4 . /CIT 5. /DR 6. /GF