M/s. Perematt India Ltd., Noida V. ITO, Noida

ITA 2263/DEL/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3197 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2004-2005
• Appeal Filed On: 13-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c); 205; 201

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI F BEN CH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND MS. SUCHITRA KAMBLE, JUDICIAL M EMBER ITA NO. 2263/DEL/2017 [A.Y 2004-05] M/S PEREMATT INDIA LTD VS. I.T.O C 125, SECTOR - 19 CIRCLE 1 NOIDA NOIDA PAN: AABCP 8215 G (APPLICANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SHRI SURENDRA PAL , SR. DR DATE OF HEARING : 07.11.2019 DATE OF PRONOUNCEMENT : 18.11.2019 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, WITH THIS APPEAL, THE ASSESSEE HAS CHALLENGED CORRE CTNESS OF THE ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] - 1, NOIDA DATED 23.02.2017 PERTAINING TO ASSESSMENT YEAR 2004-05. 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE AS SESSEE IS THAT, IN SPITE OF THE ORDER FOR FULL AND FINAL SETTLEMENT OF TAX ARREARS U/S 204(2) R.W.S 205 OF THE FINANCE ACT, 2016 IN RESPEC T OF DIRECT TAX DISPUTE RESOLUTION SCHEME, 2016, THE LD. CIT(A) CON FIRMED THE PENALTY LEVIED U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961 [ HEREINAFTER REFERRED TO AS 'THE ACT']. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE. THE LD . DR WAS HEARD AT LENGTH AND CASE RECORDS CAREFULLY PERUSED. 4. WE FIND FORCE IN THE CONTENTION OF THE ASSESSEE. THE ORDER FOR FULL AND FINAL SETTLEMENT OF TAX READS AS UNDER: ORDER FOR FULL AND FINAL SETTLEMENT OF TAX ARREAR UNDER SECTION 204(2), READ WITH SECTION 205 OF THE FINANCE ACT. 2016 IN RESPECT OF THE DIRECT TAX DISPUTE RESOLUTION SCHEME. 2016 THE DIRECT TAX DISPUTE RESOLUTION SCHEME RULES. 201 6 WHEREAS PEREMATT INDIA LTD.(PAN:- AABCP8215G)/ C-12 5 SECTOR- 19 NOIDA-201301(NAME AND ADDRESS OF THE DECLARANT)( HEREINAFTER REFERRED TO AS DECLARANT) HAD MADE A DECLARATION UN DER SECTION 202 OF THE FINANCE ACT, 2016; 3 AND WHEREAS THE DESIGNATED AUTHORITY BY ORDER DATED 23.09.2016.DETERMINED THE AMOUNT OF 67500/-RUPEES P AYABLE BY THE DECLARANT IN ACCORDANCE WITH THE PROVISIONS OF THE SCHEME AND GRANTED A CERTIFICATE SETTING FORTH THEREIN THE PAR TICULARS OF THE TAX ARREAR AND THE SUM PAYABLE AFTER SUCH DETERMINA TION TOWARDS FULL AND FINAL SETTLEMENT OF TAX ARREAR AS PER DETA ILS GIVEN BELOW; AND WHEREAS THE DECLARANT HAS PAID 67500/-.RUPEES B EING THE SUM DETERMINED BY THE DESIGNATED AUTHORITY; NOW, THEREFORE, IN EXERCISE OF THE POWERS CONFERRED BY SUB- SECTION (2) OF SECTION 204 READ WITH SECTION 205 OF THE FINANCE ACT, 2016, IT IS HEREBY CERTIFIED THAT- (A) A SUM OF RS 67500/-HAS BEEN PAID BY THE DECLARANT TOWARDS FULL AND FINAL SETTLEMENT OF TAX ARREAR DETERMINED IN TH E ORDER DATED 19.10.2016. (B) IMMUNITY IS GRANTED SUBJECT TO THE PROVISIONS CONT AINED IN THE SCHEME, FROM INSTITUTING ANY PROCEEDING FOR PROSECU TION FOR ANY OFFENCE UNDER THE INCOME-TAX ACT/WEALTH-TAX ACT OR FROM THE IMPOSITION OF PENALTY UNDER THE SAID ENACTMENT [AS PER SECTION 205(B)(II) OF THE FINANCE ACT, 2016], IN RESPECT OF THE DISPUTED TAX/DISPUTED INCOME AS DETAILED IN THE TABLE BELOW: ASSES S MENT YEAR APPEAL REFERENCE NUMBER AMOUNT OF DISPUTED INCOME AMOUNT OF DISPUTED TAX 2004-05 75/201 69,38,604/- 2,70.000/- 4 5. WE FURTHER FIND THAT THE BOARD HAS ISSUED CLARIF ICATIONS ON THE DIRECT TAX DISPUTE RESOLUTION SCHEME, 2016, VIDE CI RCULAR NO. 33/2016 DATED 12.09.2016. QUESTION NO. 3 HAS BEEN ANSWERED AS UNDER: QUESTION NO. 3 - APPEAL AGAINST QUANTUM AS WELL AS PENALTY UNDER SECTION 271 (L)(C) IS PENDING BEFORE CLT(APPE ALS). IF THE ASSESSEE FILES A DECLARATION IN RESPECT OF THE QUAN TUM APPEAL UNDER THE SCHEME, WHAT WOULD BE THE FATE OF PENALTY APPEAL? ANSWER - AS PER THE SCHEME, IN A CASE WHERE DISPUTE D TAX IN QUANTUM APPEAL IS MORE THAN RS.10 LAKH, THE DECLARA NT HAS TO PAY THE DISPUTED TAX, INTEREST AND 25% OF MINIMUM PENAL TY LEVIABLE. FURTHER, IN A CASE WHERE THE DISPUTED TAX IN QUANTU M APPEAL DOES NOT EXCEED RS.10 LAKH, THE DECLARANT IS REQUIR ED TO PAY ONLY THE DISPUTED TAX & INTEREST AND THERE IS NO REQUIRE MENT FOR PAYMENT OF ANY AMOUNT IN RESPECT OF PENALTY LEVIABL E. SECTION 205(B) OF THE ACT PROVIDES IMMUNITY FROM IM POSITION OR WAIVER OF PENALTY UNDER THE INCOME-TAX ACT OR THE W EALTH-TAX ACT IN RESPECT OF TAX ARREAR COVERED IN THE DECLARA TION TO THE EXTENT THE PENALTY EXCEEDS THE AMOUNT OF PENALTY RE FERRED TO IN SECTION 202(1) OF THE ACT. HENCE, IN BOTH THE SITUA TIONS (I.E. WHETHER DISPUTED TAX IN QUANTUM APPEAL EXCEEDS RS.1 0 LAKH OR NOT), WHERE A VALID DECLARATION UNDER THE SCHEME IS MADE IN RESPECT OF QUANTUM APPEAL, THE APPEAL AGAINST PENAL TY LEVIED 5 UNDER SECTION 271(L)(C) OF THE INCOME-TAX ACT, RELA TING TO THE QUANTUM APPEAL PENDING BEFORE THE CIT (APPEALS) SHA LL BE DEEMED TO BE WITHDRAWN AND THE PENALTY OR THE BALAN CE AMOUNT OF PENALTY, AS THE CASE MAY BE, SHALL BE DEEMED TO BE WAIVED. 6. CONSIDERING THE ORDER MENTIONED HEREINABOVE, IN THE LIGHT OF CLARIFICATIONS OF THE DIRECT TAX DISPUTE RESOLUTION SCHEME, 2016, WE ARE OF THE CONSIDERED VIEW THAT THE LD. CIT(A) OUGH T TO HAVE CONSIDERED THE APPEAL AS WITHDRAWN. HOWEVER, IN NOT DOING SO, THE ORDER BECOMES ERRONEOUS IN LAW AND DESERVES TO BE SET ASI DE. WE, ACCORDINGLY, DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY SO LEVIED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO. 2263/DEL/2017 IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 18.11. 2019. SD/- SD/- [ SUCHITRA KAMBLE ] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 18 TH NOVEMBER, 2019 VL/ 6 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER