Gatraj jain, CHENNAI V. ITO Non Corporate Ward 11(4), CHENNAI

ITA 2567/CHNY/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 6684 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 07-01-2021
• Assessment Year: 2015-2016
• Appeal Filed On: 03-09-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Competent authority
• Section: 6

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI . , , BEFORE SHRI DUVVURU RL REDDY, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER SL.NO ITA NO: AY APPELLANT RESPONDENT 1 1718/CHNY/2018 2014 - 15 FANCY BAMBOLY, NO. 4B, PROF. SUBRAMANIA STREET, KILPAUK, CHENNAI 600 010. [PAN: AAFPF 9489B] AR: D. ANAND, ADV. INCOME TAX OFFICER, NON CORPORATE WARD -10(2), CHENNAI. DR: MS. R. ANITA, JCIT 2 2079/CHNY/2018 2014 - 15 ACIT, NON CORPORATE CIRCLE -15, CHENNAI. DR: MS. R. ANITA, JCIT M/S. VJS ENTERPRISES, NO. 21B, COPPER BEACH AVENUE, AKKARAI, CHENNAI 600 119. [PAN: AAFFV 4484J] AR: SAROJ KUMAR PARIDA, ADV. 3 2241/CHNY/2019 2016 - 17 M/S. VJS ENTERPRISES, NO. 21B, COPPER BEACH AVENUE, AKKARAI, CHENNAI 600 119. [PAN: AAFFV 4484J] AR: SAROJ KUMAR PARIDA, ADV. ACIT, NON CORPORATE CIRCLE -15, CHENNAI. DR: MS. R. ANITA, JCIT 4 2243/CHNY/2019 2016 - 17 ACIT, CORPORATE CIRCLE 6(2), CHENNAI. DR: MS. R. ANITA, JCIT SOLAR SOLES PVT. LTD., NEW NO. 266, OLD NO. 829/1, PERIYAR EVR HIGH ROAD, KILPAUK, CHENNAI 600 010. [PAN: AAICS 5736Q] AR: N. ARJUN RAJ, CA FOR S. SRIDHAR, ADV. 5 2567/CHNY/2018 2015 - 16 VIKRAM KUMAR, LEGAL HEIR OF LATE SHRI GATRAJ JAIN, NO. 97, NARAYANA MUDALI STREET, CHENNAI 600 001. INCOME TAX OFFICER, NON CORPORATE WARD -11(4), CHENNAI. :-2-: ITA NOS: 1718/18 & 4 OTHERS [PAN: AALPG 6608D] AR: N. VIJAY KUMAR, CA DR: MS. R. ANITA, JCIT & /DATE OF HEARING : 07.01.2021 & /DATE OF PRONOUNCEMENT : 07.01.2021 / O R D E R PER BENCH: THIS BUNCH OF 5 APPEALS FILED BY DIFFERENT ASSESSEE S AND REVENUE ARE DIRECTED AGAINST ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), EVEN DATED 23.03.2018, 27.03.2018, 31.05.2019, 30.0 5.2019 & 30.07.2018 FOR THE RESPECTIVE ASSESSMENT YEARS. 2. WE HAVE HEARD THE COUNSELS FOR THE ASSESSEES AND THE LD. DR AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE TI ME 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 THI S REGARD SOME OF ASSESSEES HAVE FILED FORM NO 1 AND 2 AND AWAITING FOR FORM NO . 3 FROM THE DESIGNATED AUTHORITY. IN SOME CASES, THE ASSESSEES HAVE RECEIV ED FORM NO. 3 FROM THE DESIGNATED AUTHORITY AND IN SOME CASES, THE ASSESSE E HAVE FILED LETTER AND EXPRESSED THEIR WILLINGNESS TO FILE FORM NO. 1 AND 2 BEFORE THE DESIGNATED AUTHORITY. :-3-: ITA NOS: 1718/18 & 4 OTHERS 3. THE BENCH HAS CONSIDERED RIVAL CONTENTIONS OF BO TH SIDES AND AFTER HEARING BOTH PARTIES, WE FOUND THAT THE GOVERNMEN T OF INDIA HAS ANNOUNCED IN THE BUDGET, 2020, A DIRECT TAXES VIVA D SE VISHWAS SCHEME, 2020 TO SETTLE PENDING DISPUTE RELATING TO DIR ECT TAXES AT VARIOUS APPELLATE FORUMS INCLUDING THE FIRST APPELLATE A UTHORITY, TRIBUNAL, HIGH COURT AND SUPREME COURT. IN THIS REGARD, THE SCHE ME HAS BEEN NOTIFIED ON 17 TH MARCH, 2020 AND BECAME DIRECT TAXES VIVAD SE VISH WAS ACT, 2020. AS PER THE SAID SCHEME, ASSESSEES ARE ALLOWED TO SETTL E DIRECT TAX DISPUTE IN A MANNER AND PROCEDURE PRESCRIBED THEREIN BY FILING N ECESSARY DECLARATION AND UNDERTAKING. THE SCHEME HAS ALSO SPECIFIED THE AMOU NT OF TAXES, INTEREST, AND PENALTY, IF ANY PAYABLE UNDER THE ACT. IF AN A SSESSEE FILED A DECLARATION AND PAY SPECIFIED TAXES AS PER THE SCHEME AND WITHDRAW THE APPEAL PENDING BEFORE THE APPELLATE AUTHORITIES, THE DES IGNATED AUTHORITY SHALL PASS AN ORDER IN FORM 5 CONFIRMING PAYMENT MADE U NDER THE SCHEME AND GRANT IMMUNITY FROM PENALTY AND PROSECUTION. 4. IN THESE APPEALS, SOME OF THE ASSESSEES HAVE FIL ED 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, FORM NO 1 AND 2 HAVE BEEN FILED AND AWAITING FORM N O. 3 FROM THE DESIGNATED AUTHORITY AND IN SOME CASES, THE ASSESSEES HAVE EXP RESSED THEIR WILLINGNESS TO FILE FORM NO. 1 AND 2 AND SETTLE THEIR DISPUTE U NDER THE SCHEME. THEREFORE, :-4-: ITA NOS: 1718/18 & 4 OTHERS ONCE THE ASSESSEES INTEND TO FILE A DECLARATION IN FORM NO.1 ALONG WITH UNDERTAKING AND EXPRESSED THEIR WILLINGNESS TO SETT LE PENDING DISPUTES REGARDING DIRECT TAXES, THEN THERE IS NO POINT IN K EEPING THE APPEAL FILED BY THE ASSESSEES. WE, FURTHER NOTED THAT RECENTLY TH E HONBLE JURISDICTIONAL HIGH COURT OF MADRAS HAS CONSIDERED AN IDENTICAL A PPLICATION 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 DISMISSED THE AP PEAL 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 CO URT 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, LEA RNED SENIOR STANDING COUNSEL AND MS. K.G.USHA RANI, LEARNED COUNSEL FO R 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 SCHEME ( VVS SCHEME' FOR BREVITY) AND IN THIS REGA RD, 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 OF CERTAIN SUBSEQUENT DEVELOPMENTS. THE GOVERNMENT OF INDIA ENACTED THE DIRECT TAX VIVA D SE VISHWAS ACT, 2020 (ACT 3 OF 2020) TO PROVIDE FOR RESOLUTION OF DISPUT ED TAX AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO. THE ACT OF THE PARLIAMENT RECEIVED 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 DI FFERENT LEVELS EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNA L 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 SECTION 3, WHERE A DE CLARANT MEANS A PERSON, WHO FILES A DECLARATION UNDER SECTION 4 ON OR BEFOR E THE LAST DATE FILES A DECLARATION TO THE DESIGNATED AUTHORITY IN ACCORDAN CE WITH THE PROVISIONS OF SECTION 4 IN RESPECT OF TAX ARREARS, THEN, NOTWITHS TANDING ANYTHING CONTAINED IN THE INCOME TAX ACT OR ANY OTHER LAW FOR THE TIME BE ING IN FORCE, THE AMOUNT :-5-: ITA NOS: 1718/18 & 4 OTHERS PAYABLE BY THE DECLARANT SHALL BE DETERMINED IN TER MS OF SECTION 3(A-C) THEREUNDER. 6. THE FIRST PROVISO TO SECTION 3 STATES THAT IN C ASE WHERE AN APPEAL OR WRIT PETITION OR SPECIAL LEAVE PETITION IS FILED BY THE INCOME TAX AUTHORITY ON ANY ISSUE BEFORE THE APPELLATE FORUM, THE AMOUNT PAYABL E SHALL BE ONE-HALF OF THE AMOUNT IN THE TABLE STIPULATED IN SECTION 3 CALCULA TED ON SUCH ISSUE, IN SUCH A MANNER AS MAY BE PRESCRIBED. THE SECOND PROVISO DEA LS WITH THE CASES, WHERE THE MATTER IS BEFORE THE COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RESOLUTION PANEL. THE THIRD PROVISO DEALS WITH CASE S, WHERE THE ISSUE IS PENDING BEFORE THE INCOME TAX APPELLATE TRIBUNAL. T HE 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. SE CTION 5 OF THE ACT DEALS WITH THE TIME AND MANNER OF THE PAYMENT AND SECTION 6 DE ALS WITH IMMUNITY FROM INITIATION OF PROCEEDINGS IN RESPECT OF OFFENCE AND IMPOSITION OF PENALTY IN CERTAIN CASES. SECTION 9 OF THE ACT DEALS WITH CASE S, 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 THE DECLARATIO N 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 PR AYER WITHOUT INSISTING UPON ANY APPLICATION TO BE FILED FOR CONDONATION OF DELA Y IN RESTORATION OF THE APPEAL AND ON SUCH REQUEST MA DE BY THE ASSESSEE BY FILING A MISCELLANEOUS PETITION FOR RESTORATION, THE REGIS TRY 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 / DECLARATION IN ACCORDANCE WITH TH E ACT AND PASS APPROPRIATE 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. IN THE LIGHT OF THE ABOVE DECISION OF THE HONBL E HIGH COURT OF MADRAS, AND BY TAKING NOTE OF THE FACT THAT SOME ASSESSE ES HAVE ALREADY FILED DECLARATION IN FORM NO.1 ALONG WITH FORM NO.2 TO TH E DESIGNATED AUTHORITY AND RECEIVED FORM 3 AND SOME OF THE ASSESSEES HAD ALREADY FILED FORM NO 1 & 2 AND AWAITING FORM NO. 3 FROM THE DESIGNATED AUT HORITY AND ALSO THE FACT THAT THE REMAINING ASSESSEES ARE WILLING TO FILE FO RM NO 1 AND 2 WITHIN THE DUE DATE PRESCRIBED FOR THIS PURPOSE, WE DISMISS THE AP PEALS FILED BY EACH OF THE ASSESSEE, SUPRA, AS WITHDRAWN. HOWEVER, LIBERTY IS GIVEN TO THE ASSESSEES TO RESTORE THE APPEALS, IN THE EVENT OF THE DESI GNATED AUTHORITY, 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 CASE WHERE THE APPEAL IS FILED BY THE :-6-: ITA NOS: 1718/18 & 4 OTHERS REVENUE AND THE ASSESSEES HAVE FOR ANY REASON OPTE D OUT FROM THE SCHEME OR THE APPLICANTS UNDER THE SCHEME MISREPRESENT ANY FACT WHICH RESULTED IN REJECTION OF APPLICATION FILED UNDER THE SCHEME, TH EN THE PROVISIONS OF SECTION 4(6) OF THE ACT, SHALL BE APPLICABLE TO ALL SUCH AP PEALS 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 T HE DECLARANT SHALL BE DEEMED TO HAVE BEEN REVIVED. WE, FURTHER MAKE IT CLEAR THAT THE ASSESSEE SHOULD PROMPTLY INFORM THE ASSESSING OFFICER ABOUT THEIR DECISION TO OPT OUT OF THE SCHEME OR REJECTION OF APPLICATION BY THE DESIG NATED AUTHORITY TO THE ASSESSING OFFICER, SO AS TO ENABLE TO FILE MISCELLA NEOUS APPLICATION TO RESTORE THE APPEAL. 6. IN THE RESULT, ALL THE ABOVE APPEALS FILED BY TH E ASSESSEE AS WELL AS THE REVENUE ARE DISMISSED AS WITHDRAWN. ORDER PRONOUNCED ON 07 TH JANUARY, 2021 AT CHENNAI. SD/- ( . ) (DUVVURU RL REDDY) /JUDICIAL MEMBER SD/- ( ) (S. JAYARAMAN) /ACCOUNTANT MEMBER /CHENNAI, + /DATED: 07 TH JANUARY, 2021 JPV &-./0/ /COPY TO: 1. 2 / APPELLANT 2. -42 /RESPONDENT 3. 5 ) ( /CIT(A) 4. 5 /CIT 5. /- /DR 6. 8 /GF