SHRI ARUN KUMAR AGARWAL, CHENNAI V. ITO, NCW - 10 (1), CHENNAI

ITA 2497/CHNY/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3535 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 28-08-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R ANITAJCIT
• Assessee Lawyers: R PADMANABHAN
• Keywords: Competent authority; Condonation of delay
• Section: 6

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , C B ENCH, CHENNAI , . , % BEFORE SHRI MAHAVIR SINGH, VICE-PRESIDENT AND SHRI G.MANJUNATHA, ACCOUNTANT MEMBER ./ I.T.A.NO.2497/CHNY/2019 ( / ASSESSMENT YEAR: 2012-13) MR. ARUN KUMAR AGARWAL, 5B, MANONMANI AMMAL ROAD, KILPAUK, CHENNAI. VS THE INCOME TAX OFFICER, NON-CORPORATE WARD-10(1) CHENNAI-34. PAN:AACPA 4524D ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. R. PADMANABHAN, C.A /RESPONDENT BY : MS. R.ANITA,JCIT /DATE OF HEARING : 10.11.2020 /DATE OF PRONOUNCEMENT : 10.11.2020 / O R D E R PER G.MANJUNATHA, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS)-12, CHENNAI DATED 30.07.2019 AND PERTAINS TO THE ASSESS MENT YEAR 2012-13. 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE TIME OF HEARING, LEARN ED COUNSEL FOR THE ASSESSEE FILED A PETITION FOR ADJOURNMENT OF APPEAL TO ANY REGULAR DATE ON THE GROUND THAT THE ASSESSEE WANT S TO UTILIZE THE DIRECT TAXES VIVAD SE VISHWAS SCHEME, 2020 TO SETTLE THE PENDING DISPUTE RELATING TO DIRECT TAXES AND I N THIS REGARD 2 ITA NO.2497/CHNY/2019 FILED DECLARATION IN FORM NO. 1 ALONG WITH UNDERTAK ING WAIVING RIGHTS FOR ANY REMEDY IN FORM 2 TO THE DESIGNATED AUTHORITY. 3. THE BENCH HAS EXAMINED THE APPLICATION FILED BY THE ASSESSEE AND FOUND THAT THE GOVERNMENT OF INDIA HAS ANNOUNCED IN THE BUDGET, 2020, A DIRECT TAXES VIVA D SE VISHWAS SCHEME, 2020 TO SETTLE THE PENDING DISP UTE RELATING TO DIRECT TAXES AT VARIOUS APPELLATE FORUMS INCL UDING 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. AS PER THE SAID SCHEME, ASSESSEES ARE ALLOWED TO S ETTLE DIRECT TAX DISPUTE IN A MANNER AND PROCEDURE PRESC RIBED THEREIN BY FILING NECESSARY DECLARATION AND UNDER TAKING. THE SCHEME HAS ALSO SPECIFIED THE AMOUNT OF TAXES, INTE REST, AND PENALTY, IF ANY PAYABLE UNDER THE ACT. IF AN ASSESS EE FILED A DECLARATION AND PAY THE SPECIFIED TAXES AS PER THE SCHEME AND WITHDRAW THE APPEAL PENDING BEFORE APPELLATE AUTHORITIES, THE DESIGNATED AUTHORITY SHALL PASS AN ORDER IN F ORM 5 CONFIRMING PAYMENT MADE UNDER THE SCHEME AND GRA NT IMMUNITY FROM PENALTY AND PROSECUTION. 3 ITA NO.2497/CHNY/2019 4. IN THIS CASE, THE ASSESSEE HAS ALREADY FILED DEC LARATION IN FORM NO.1 ALONG WITH UNDERTAKING WAIVING RIGHTS FOR ANY REMEDY IN FORM NO. 2 TO DESIGNATED AUTHORITY AND AWAITING CERTIFICATE IN FORM 3 CONTAINING THE AMOUNT PAYABLE. THEREFORE, ON CE THE ASSESSEE INTEND TO FILE A DECLARATION IN FORM NO. 1 ALONG WITH UNDERTAKING AND EXPRESSED HIS WILLINGNESS TO SETT LE PENDING DISPUTES REGARDING DIRECT TAXES, THEN THERE IS NO POINT IN KEEPING PENDING APPEAL FILED BY THE ASSESSE. WE FU RTHER NOTED THAT RECENTLY THE HONBLE JURISDICTIONAL HIGH COU RT 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 D ISMISSED THE APPEAL FILED BY THE PETITIONER AS WITHDRAWN, BU T ALLOWED LIBERTY TO THE ASSESSEE TO RESTORE THE APPEAL IN THE EVENT THE DESIGNATED AUTHORITY FOR ANY REASON REJECT APPLICAT ION FILED BY THE ASSESSEE UNDER SECTION 4 OF THE ACT. THE RELEVA NT PORTION OF THE OBSERVATIONS OF THE HONBLE HIGH COURT OF MADRA S 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 4 ITA NO.2497/CHNY/2019 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 TA KING 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 CONSIDERATI ON 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 INCIDENT AL THERETO. THE ACT OF THE PARLIAMENT RECEIVED THE ASSENT OF TH E 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 SE CTION 2(J) 'DISPUTED TAX' HAS BEEN DEFINED. IN TERMS OF SECTIO N 3, WHERE A DECLARANT MEANS A PERSON, WHO FILES A DECLARATION UNDER SECTION 4 ON OR BEFORE THE LAST DATE FILES A DECLAR ATION TO THE DESIGNATED AUTHORITY IN ACCORDANCE WITH THE PROVISI ONS OF SECTION 4 IN RESPECT OF TAX ARREARS, THEN, NOTWITHS TANDING ANYTHING CONTAINED IN THE INCOME TAX ACT OR ANY OTH ER LAW FOR THE TIME BEING IN FORCE, THE AMOUNT PAYABLE BY THE DECLARANT SHALL BE DETERMINED IN TERMS OF SECTION 3(A-C) THER EUNDER. 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 SUC H ISSUE, IN SUCH A MANNER AS MAY BE PRESCRIBED. THE SECOND PROV ISO DEALS WITH THE CASES, WHERE THE MATTER IS BEFORE TH E COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RESOLU TION PANEL. THE THIRD PROVISO DEALS WITH CASES, WHERE TH E ISSUE IS PENDING BEFORE THE INCOME TAX APPELLATE TRIBUNAL. T HE FILING OF THE DECLARATION IS AS PER SECTION 4 OF THE ACT A ND THE PARTICULARS TO BE FURNISHED ARE ALSO MENTIONED IN T HE 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 IMMUNITY 5 ITA NO.2497/CHNY/2019 FROM INITIATION OF PROCEEDINGS IN RESPECT OF OFFENC E AND IMPOSITION OF PENALTY IN CERTAIN CASES. SECTION 9 O F THE ACT DEALS 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 TAK EN ON THE DECLARATION TO BE FILED BY THE ASSESSEE UNDER SECTI ON 4 OF THE SAID ACT IS NOT IN FAVOUR OF THE ASSESSEE. IF SUCH A PRAYER IS MADE, THE REGISTRY SHALL ENTERTAIN THE PRAYER WITHO UT INSISTING UPON ANY APPLICATION TO BE FILED FOR CONDONATION OF DELAY IN RESTORATION OF THE APPEAL AND ON SUCH REQUEST MA DE BY THE ASSESSEE BY FILING A MISCELLANEOUS PETITION FOR RES TORATION, THE REGISTRY SHALL PLACE SUCH PETITION BEFORE THE D IVISION 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 20.11.2 020 AND THE COMPETENT AUTHORITY SHALL PROCESS THE APPLICATI ON / DECLARATION IN ACCORDANCE WITH THE ACT AND PASS APP ROPRIATE ORDERS AS EXPEDITIOUSLY AS POSSIBLE PREFERABLY WITH IN A PERIOD OF SIX (6) WEEKS FROM THE DATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FORM. 5. THE BENCH HAS ALSO TAKEN NOTE OF THE AFORESAID D ECISION OF THE HONBLE HIGH COURT OF MADRAS, WHEREIN IT HA S DISMISSED THE APPEAL FILED BY THE ASSESSEE ON THE PRETEXT OF APPLICATION FILED BY THE ASSESSEE IN FORM NO.1 BEFORE THE DESIGNATED AUTHORITY UNDER VIVAD SE VISHWAS SCHEME, 2020 T O SETTLE ITS DIRECT TAXES DISPUTE, BUT LIBERTY IS GIVEN TO THE A SSESSEE TO RESTORE THE APPEAL IN THE EVENT THE APPLICATION F ILED BY THE ASSESSEE IS REJECTED BY THE DESIGNATED AUTHORITY FOR ANY REASONS. WHEN THE BENCH ASKED LEARNED COUNSEL FOR THE ASSESSEE TO WITHDRAW ITS APPEAL, WITH A LIBERTY T O RESTORE THE 6 ITA NO.2497/CHNY/2019 APPEAL, IN CASE THE APPLICATION FILED BEFORE THE DESIGNATED AUTHORITY IS REJECTED, THE LD. COUNSEL FOR THE AS SESSEE AS WELL AS LEARNED DR FOR THE REVENUE HAVE AGREED. THEREFORE, BY TAKING NOTE OF THE FACT THAT THE ASSESSEE H AS ALREADY FILED DECLARATION IN FORM NO.1 ALONG WITH FORM NO.2 TO THE DESIGNATED AUTHORITY AND ALSO TAKEN NOTE OF THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN T.C.A NO.37 2 OF 2020 DATED 16.10.2020 (SUPRA), WE DISMISS THE APPEAL FIL ED BY THE ASSESSEE AS WITHDRAWN. HOWEVER, A LIBERTY IS GIVE N TO THE ASSESSEE TO RESTORE THIS APPEAL, IN THE EVENT OF THE DESIGNATED AUTHORITY, FOR ANY REASON REJECT THE AP PLICATION FILED BY THE ASSESSEE UNDER SECTION 4 OF THE SAID ACT. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED AS WITHDRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH NOVEMBER, 2020 SD/- SD/- ( ) ( . ) (MAHAVIR SINGH) (G. MANJUNATHA ) / VICE-PRESIDENT $ / ACCOUNTANT MEMBER & /CHENNAI, ' /DATED 10 TH NOVEMBER, 2020 DS )* +* /COPY TO: 1. APPELLANT 2. RESPONDENT 3. , () /CIT(A) 4. , /CIT 5. * 1 /DR 6. /GF .