Mr. Rakesh Kumar Tongar, Uttar Pradesh V. ITO, Noida

ITA 2659/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4901 (ITAT-DELHI)
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 01-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : SMC : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT ITA NO.2659/DEL/2017 ASSESSMENT YEAR : 2009-10 RAKESH KUMAR TONGAR, E-434, GAMMA 01, GREATER NOIDA, UTTAR PRADESH. PAN: AHAPT0955A VS. ITO, WARD-3(3), NOIDA. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SAMEER KAPOOR, CA DEPARTMENT BY : SHRI T. VASANTHAN, SR. DR DATE OF HEARING : 31.08.2017 DATE OF PRONOUNCEMENT : 01.09.2017 ORDER THIS APPEAL FILED BY THE ASSESSEE ARISES OUT OF TH E ORDER PASSED BY THE CIT(A) ON 23.02.2017 IN RELATION TO THE ASSESSM ENT YEAR 2009-10. ITA NO.2659/DEL/2017 2 2. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST THE DISMISSAL OF THE APPEAL BY THE LD. CIT(A) WHEN THE ASSESSEE AVAILED THE BENEFIT OF THE PROVISIONS OF FINANCE ACT, 2016 RELATING TO DIRECT TAX DISPUTE RESOLUTION SCHEME, 2016. 3. AFTER HEARING BOTH THE SIDES AND PERUSING THE RE LEVANT MATERIAL ON RECORD, IT IS OBSERVED THAT THE ASSESSMENT WAS COMP LETED AT TOTAL INCOME OF RS.16.56 LAC AGAINST THE DECLARED INCOME OF RS.1 .56 LAC. THE ASSESSEE AVAILED THE BENEFIT OF THE PROVISIONS OF FINANCE AC T, 2016 DEALING WITH THE DIRECT TAX DISPUTE RESOLUTION SCHEME, 2016. THE ASSESSEE PRAYED BEFORE THE LD. CIT(A) THAT THE PENDING APPEAL BE DI SMISSED AS WITHDRAWN. THE LD. CIT(A) DID NOT PERMIT SO, AS, I N HIS OPINION, THERE WAS NO POWER WITH HIM TO PERMIT THE WITHDRAWAL. IN THE LAST PARA OF HIS ORDER, THE LD. CIT(A) OBSERVED THAT: CONSIDERING T HE PECULIAR POSITION OF LAW AND THE UNDUE AND UNFAIR PREJUDICE INFLICTED UP ON THE APPELLANT, THE OFFICE IS DIRECTED TO FORWARD A COPY OF THIS STATUT ORY ORDER TO THE OFFICE OF THE LD. MEMBER (L&C), CBDT FOR HIS NECESSARY CONSID ERATION. THE ASSESSEE IS AGGRIEVED BEFORE THE TRIBUNAL. ITA NO.2659/DEL/2017 3 4. I HAVE GONE THROUGH APPENDIX 2, BEING, THE EXPLA NATORY MEMORANDUM TO THE BUDGET 2016. APPENDIX 3 IS THE D IRECT TAX DISPUTE RESOLUTION SCHEME, 2016. CLAUSE 203 OF THI S SCHEME READS AS UNDER:- (1) A DECLARATION UNDER SECTION 202 SHALL BE MADE TO THE DESIGNATED AUTHORITY IN SUCH FORM AND VERIFIED IN SUCH MANNER AS MAY BE PRESCRIBED. (2) WHERE THE DECLARATION IS IN RESPECT OF TAX ARRE AR, CONSEQUENT TO SUCH DECLARATION, APPEAL IN RESPECT OF THE DISPUTED INCOME, DISPUTED WEALTH AND TAX ARREAR PENDING BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS) OR THE COMMISSIONER OF WEALTH-TAX (APPEALS), AS TH E CASE MAY BE, SHALL BE DEEMED TO HAVE BEEN WITHDRAWN. 5. IT IS CLEAR FROM CLAUSE 203 THAT WHERE A VALID D ECLARATION IS MADE, THE APPEAL IN RESPECT OF THE DISPUTED INCOME PENDIN G BEFORE THE CIT(A) SHALL BE DEEMED TO HAVE BEEN WITHDRAWN. THE LD. CI T(A) HAS NOT DISPUTED THAT THE ASSESSEE COMPLIED WITH ALL THE NE CESSARY CONDITIONS FOR AVAILING THE BENEFIT FLOWING FROM THE DIRECT TAX RE SOLUTION SCHEME, 2016. IN VIEW OF THE ASSESSEES AVAILING THE BENEFI T OF THE DIRECT TAX DISPUTE RESOLUTION SCHEME, 2016, THE CIT(A) SHOULD HAVE SUO MOTU TREATED THE APPEAL AS WITHDRAWN INSTEAD OF DISMISSI NG IT. IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, I SET ASIDE TH E IMPUGNED ORDER IN NOT ITA NO.2659/DEL/2017 4 PERMITTING THE WITHDRAWAL OF THE APPEAL AND HOLD TH AT THE APPEAL FILED BY THE ASSESSEE WHICH WAS PENDING WITH THE CIT(A) AT T HE TIME OF AVAILING THE BENEFIT OF THE DIRECT TAX DISPUTE RESOLUTION SC HEME, 2016, BE DISMISSED AS WITHDRAWN. 6. IN THE RESULT, THE APPEAL FILED BY THE ASS ESSEE IS ALLOWED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 01 ST SEPTEMBER, 2017. SD/- [R.S. SYAL] VICE PRESIDENT DATED, 01 ST SEPTEMBER, 2017. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.