SHRI D. KUMAR, CHENNAI V. ITO, NCW - 8 (3), CHENNAI

ITA 2223/CHNY/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 5153 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2016-2017
• Appeal Filed On: 31-07-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHNY
• Keywords: Competent authority; Condonation of delay
• Section: 20

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: CHENNAI , , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI G. MANJUNATHA , ACCOUNTA NT MEMBER SL. NO. I.T.A. NO ASSTT YEAR ASSESSEE & PAN RESPONDENT APPELLANT BY RESPONDENT BY [1] 3085 /CHNY/20 19 2008 - 2009 SHRI KHIMRAJ MISRIMAL SAKARIYA, NO.4, GENGURAMAN STREET, PARK TOWN, CHENNAI 600 0 - 03. PAN: AAXPS 4614D THE ASSISTANT COMMISSIONER OF INCOME TAX, NON - CORPORATE CIRCLE - 5(1), CHENNAI 600 034 MR. S. SRIDHAR, ADVOCATE MR. CHANDRA - BABU, ADDITIONAL CIT [2] 1540 /CHNY/20 19 2014 - 2015 SHRI KARIM MOHAMED HANIF, NO.54/22, PRASANA VINAYAKAR KOIL STRET, MYLAPORE, CHENNAI - 600 004 PAN: AYPPK 5 493C INCOME TAX OFFICER, NON - CORPORATE WARD - 1 [4], CHENNAI 600 034 MR. D. ANAND, ADVOCATE MR. CHANDRA - BABU, ADDITIONAL CIT [3] 1154 /CHNY/20 18 2007 - 2008 SRI SAIBABA SWAMIGAL THIRUMANA MANDAPAM, NO.42, BHARATHY STREET, THIRUVALLUVAR NAGAR, PONDICHERRY 605 003 PAN: AAVFS 4453Q INCOME TAX OFFICER, WARD 3, PUDUCHERRY - 605 003 MR. T. VASU - DEVAN, ADVOCATE MR. CHANDRA - BABU, ADDITIONAL CIT [4] 1155 /CHNY/20 18 2008 - 2009 SRI SAIBABA SWAMIGAL THIRUMANA MANDAPAM, NO.42, BHARATHY STREET, THIRUVALLUVAR NAGAR, P ONDICHERRY 605 003 PAN: AAVFS 4453Q INCOME TAX OFFICER, WARD 3, PUDUCHERRY - 605 003 MR. T. VASU - DEVAN, ADVOCATE MR. CHANDRA - BABU, ADDITIONAL CIT [5] 1156 /CHNY/20 18 2009 - 2010 SRI SAIBABA SWAMIGAL THIRUMANA MANDAPAM, NO.42, BHARATHY STREET, THIRUVALLU VAR NAGAR, PONDICHERRY 605 003 PAN: AAVFS 4453Q INCOME TAX OFFICER, WARD 3, PUDUCHERRY - 605 003 MR. T. VASU - DEVAN, ADVOCATE MR. CHANDRA - BABU, ADDITIONAL CIT [6] 367 /CHNY/20 18 2014 - 2015 SMT. SASIKALA RAGHUPATHY, NEW NO.60, OLD NO.100, IV STREET, AB HIRAMAPURAM, CHENNAI - 600018. PAN: AAFPR548 1 B ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 3(1), CHENNAI - MS. NITIN, C.A MR. C. BHARATH, CIT I . T . A NO S. 3085 /CHNY/2019 & OTHERS : - 2 - : [7] 3305 /CHNY/20 18 2010 - 2011 MR. KAMALESH KUMAR KANKARIA, NO.5/10, VENKATANARAYAN 2 ND STREET, PARK TOW N, CHENNAI 600 003. PAN: AANPK 0647E INCOME TAX OFFICER O/O THE INCOME TAX OFFICER, NON - CORPORATE WARD - 5[1], CHENNAI SHRI Y. SRIDHAR, AUTHORIZED REPRESENTATIVE MR. CHANDRA - BABU, ADDITIONAL CIT [8] 2223 /CHNY/20 19 2016 - 2017 SHRI D. KUMAR, NO.85, BALAJI NAGAR, 3 RD STREET, ALWARTHIRUNAGAR, CHENNAI 600 087 PAN: AQFPK 0646R INCOME TAX OFFICER, NON CORPORATE WARD - 8[3], CHENNAI - 600 034 MR. V.S. JAYA KUMAR, ADVOCATE MR. CHANDRA - BABU, ADDITIONAL CIT [9] 2293 /CHNY/20 19 2011 2012 MS. M ETTILDA ANANDHARAJ, NO.32, MAIN ROAD, ANDANKUPPAM, KUNDRATHUR, CHENNAI 600 069 PAN: DEIPM 1573M INCOME TAX OFFICER, NON - CORPORATE WARD - 9[5], CHENNAI 600 034 SHRI Y. SRIDHAR, AUTHORIZED REPRESENTATIVE MR. CHANDRA - BABU, ADDITIONAL CIT [10] 154 /CHNY/20 20 2014 - 2015 MR. G . SATHISH DAS, NO.4, SYLVAN LODGE COLONY, SECOND CROSS STREET, KELLYS, CHENNAI 600 010 PAN: AASPS 5195C THE INCOME TAX OFFICER, CORPORATE WARD 2[2], NO.121, M.G. ROAD,NUNGAMBAKKAM, CHENNAI - 600 034 MR. I. DINESH, ADVOCATE MR. CHANDRA - BABU, ADDITIONAL CIT [11] 151 /CHNY/20 20 2008 - 2009 M/S. GLOBALUTION SHOES PRIVATE LIMITED, NO.2/24, AMMAN NAGAR, 45, CHENNAI - BANGALORE ROAD, MALMANOOR VILLAGE, VELLORE 632 010 PAN: AACCG 7396L INCOME TAX OFFICER, WARD II (1), CHENNAI 600034 MR. N. VIJAY KUMAR, C. A MR. CHANDRA - BABU, ADDITIONAL CIT / DATE OF HEARING : 05.01.2021 / DATE OF PRONOUNCEMENT : 05.01.2021 / O R D E R PER BENCH : THIS BUNCH OF ELEVEN APPEALS FILED BY DIFFERENT A SSESSEES ARE DIRECTED AGAINST ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX I . T . A NO S. 3085 /CHNY/2019 & OTHERS : - 3 - : (APPEALS), CHENNAI OF EVEN DATED 09.10.2019, 25.03.2019, 31.01.2018, 31.01.2018, 31.01.2018, 05.01.2018, 18.09.2018, 25.06.2019, 07.06.2019, 01.11.2019 & 19.11.2019 FOR RESPECTIVE ASSESSMENT YEARS. 2. 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 COUNSELS FOR THE ASSESSEES HAVE MADE A STATEMENT AT BAR THAT THE ASSESSEES 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 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 EXPRESSED THEIR WILLINGNESS TO FILE F ORM N O. 1 AND 2 BEFORE THE DESIGNATED AUTHORITY. 3. THE BENCH HAS CONSIDERED RIVAL CONTENTIONS OF BOTH SIDE S 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 T HE 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 I . T . A NO S. 3085 /CHNY/2019 & OTHERS : - 4 - : SCHEME, A SSESSEES ARE ALLOWED TO SETTLE DIRECT T AX 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 DECLARATION AND PAY S PECIFIED 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 PENALTY AND PROSECUTION. 4. 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 SETTLE THEIR DISPUTE UNDER THE SCHEME. THEREFORE, ONCE THE ASSESSEES INTEND TO FILE A DECLARATI ON 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 JURISDICTIONAL HIGH CO URT 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 HONBLE HIGH COURT HAS DI SMISSED THE APPEAL FILED BY THE PETITIONER I . T . A NO S. 3085 /CHNY/2019 & OTHERS : - 5 - : 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 PO RTIONS 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 SENIO R 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 VIVAD SE VISHWAS SCHEM E ( 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 ACCOUNT O F 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 OF THE PARLIAMENT RECE IVED 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 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 MEANS 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, I . T . A NO S. 3085 /CHNY/2019 & OTHERS : - 6 - : 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 PETITION IS FILED BY T HE 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 PROVISO DEALS WITH THE CASE S, 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 RESPECT OF OFFENCE AND I MPOSITION 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 DECLA RATION 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 RESTORATIO N 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 D ATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FORM. I . T . A NO S. 3085 /CHNY/2019 & OTHERS : - 7 - : 5. IN THE LIGHT OF THE ABOVE DECISION OF THE HONBLE HIGH COURT OF MADRAS, AND BY TAKING NOTE OF THE FACT THAT SOME A SSESSEES HAVE ALREADY FILED DECLARATION IN FORM NO.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 AN D ALSO THE FACT THAT THE REMAINING A SSESSEES ARE WILLING TO FILE FORM NO. 1 AND 2 WITHIN T HE DUE DATE PRESCRIBED FOR THIS PURPOSE, WE DIS MISS THE APPEALS FILED BY EACH OF THE A SSESSEES , SUPRA, AS WITHDRAWN. HOWEVER, LIBER TY 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 APPLICANTS UNDER THE SCHEME MI SREPRESENT 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 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 ASSESSEE S 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 RESTORE THE APPEAL. I . T . A NO S. 3085 /CHNY/2019 & OTHERS : - 8 - : 6. 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. /A PPELLANT 2. /RESPONDENT 3. () /CIT(A) 4. /CIT 5. /DR 6. /GF