TAMILNADU GENERATION AND DISTRIBUTION CORPORATION LIMITED, CHENNAI V. ACIT CORPORATE CIRCLE 3(1), CHENNAI

ITA 3025/CHNY/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 7202 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 02-11-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: TO CHNY TO MS TAMILNADU GE
• Keywords: Reasonable cause; Condonation of delay
• Section: 13; 6

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , C B ENCH, CHENNAI . , . , % BEFORE SHRI V.DURGA RAO , JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER S. NO ITA NO. ASSTT YEAR ASSESSEE /DEPARTMENT RESPONDENT APPELLANT BY RESPONDENT BY 1-9 3020 TO 3028/CHNY/2018 2007-08 TO 2012-13 M/S. TAMILNADU GENERATION & DISTRIBUTION CORPORATION LTD. (FORMERLY TNEB) 144, NPKRR MAALIGAI, ELECTRICITY AVENUE, ANNA SALAI, CHENNAI-600 002. PAN: AAACT 1245M / AADCT 4784E ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE- 3(1) CHENNAI-34. MR. SAROJ KUMAR PARIDA, ADVOCATE MR. G.JOHNSON, ADDL.CIT 10- 13 3060 TO 3063/CHNY/2018 2009-10 TO 2012-13 ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE- 3(1) CHENNAI-34. (FORMERLY TNEB) M/S. TAMILNADU GENERATION & DISTRIBUTION CORPORATION LTD. 144, NPKRR MAALIGAI, ELECTRICITY AVENUE, ANNA SALAI, CHENNAI-600 002. PAN: AAACT 1245M / AADCT 4784E MR. G.JOHNSON, ADDL.CIT MR. SAROJ KUMAR PARIDA, ADVOCATE /DATE OF HEARING : 30.03.2021 /DATE OF PRONOUNCEMENT : 01.04.2021 / O R D E R PER BENCH: THIS BUNCH OF 13 APPEALS FILED BY ASSESSEE AND R EVENUE ARE DIRECTED AGAINST COMMON ORDER OF THE LEARNED COMM ISSIONER OF INCOME TAX (APPEALS)-11, CHENNAI DATED 06.08.2018 F OR RESPECTIVE ASSESSMENT YEARS. 2. FURTHER, WE FIND THAT APPEALS FILED BY REVENUE IN ITA NO.3060 TO 3063 /CHNY/2018 AT SR.NO.10 TO 13 ARE BARRED B Y LIMITATION FOR 2 ITA NOS.3020 TO 3028/CHNY/2018 & 3060 TO 3063/CHNY/2018 WHICH NECESSARY PETITION FOR CONDONATION OF DELA Y ALONG WITH AFFIDAVIT EXPLAINING THE REASONS FOR THE DELAY H AS BEEN FILED. THE LEARNED DR SUBMITTED THAT DEPARTMENT COULD NOT FI LE APPEALS WITHIN THE TIME ALLOWED UNDER THE ACT, THEREFORE DELAY MA Y BE CONDONED. HAVING HEARD BOTH SIDES AND CONSIDERED THE PETITION FILED BY THE REVENUE FOR CONDONATION OF DELAY, WE ARE OF THE CON SIDERED VIEW THAT REASONS GIVEN BY REVENUE FOR NOT FILING THE APPEALS WITHIN THE TIME ALLOWED UNDER THE ACT COME UNDER REASONABLE CAUSE AS PROVIDED UNDER THE ACT FOR CONDONATION OF DELAY A ND HENCE, DELAY IN FILING OF ABOVE APPEALS ARE CONDONED AND APPEA LS FILED BY THE REVENUE ARE ADMITTED FOR ADJUDICATION. 3. WE HAVE HEARD THE COUNSELS FOR THE ASSESSEES AN D THE LD. DR AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE TIME OF HEARING, LEARNED COUNSELS FOR THE ASSESSEES HAV E MADE A STATEMENT AT BAR THAT THE ASSESSEES WANTS TO UTI LIZE THE DIRECT TAXES VIVAD SE VISHWAS SCHEME, 2020 TO SETTLE PEN DING DISPUTE RELATING TO DIRECT TAXES AND IN THIS REGARD SOME OF ASSESSEES HAVE FILED FORM NO 1 AND 2 AND AWAITING FORM NO. 3 FROM THE DESIGNATED AUTHORITY. IN SOME CASES, THE ASSESSEES HAVE RECEI VED FORM NO. 3 FROM THE DESIGNATED AUTHORITY AND IN SOME CASES, TH E ASSESSEE 3 ITA NOS.3020 TO 3028/CHNY/2018 & 3060 TO 3063/CHNY/2018 HAVE FILED LETTER AND EXPRESSED THEIR WILLINGNESS T O FILE FORM NO. 1 AND 2 BEFORE THE DESIGNATED AUTHORITY. 4. THE BENCH HAS CONSIDERED RIVAL CONTENTIONS OF BO TH SIDES AND AFTER HEARING BOTH PARTIES, WE FOUND THAT THE GOV ERNMENT 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 INCLUDI NG 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. A S PER THE SAID SCHEME, ASSESSEES ARE ALLOWED TO SETTLE DIRECT TAX DISPUTE IN A MANNER AND PROCEDURE PRESCRIBED THEREIN BY FILING N ECESSARY DECLARATION AND UNDERTAKING. THE SCHEME HAS ALSO SP ECIFIED THE AMOUNT OF TAXES, INTEREST, AND PENALTY, IF ANY PAYA BLE UNDER THE ACT. IF AN ASSESSEE FILED A DECLARATION AND PAY SPECI FIED TAXES AS PER THE SCHEME AND WITHDRAW THE APPEAL PENDING BEFOR E THE APPELLATE AUTHORITIES, THE DESIGNATED AUTHORITY SHALL PASS AN ORDER IN FORM 5 CONFIRMING PAYMENT MADE UNDER THE SCHEME AND GRA NT IMMUNITY FROM PENALTY AND PROSECUTION. 4 ITA NOS.3020 TO 3028/CHNY/2018 & 3060 TO 3063/CHNY/2018 5. IN THESE PRESENT APPEALS, SOME ASSESSEES HAVE F ILED DECLARATION IN FORM NO.1 ALONG WITH UNDERTAKING WAI VING RIGHTS FOR ANY REMEDY IN FORM NO. 2 TO THE DESIGNATED AUTHORIT Y AND HAS ALSO RECEIVED FORM 3. IN SOME CASES, FORM NO 1 AND 2 H AS BEEN FILED AND AWAITING FORM NO. 3 FROM THE DESIGNATED AUTHORI TY AND IN SOME CASES, THE ASSESSEES HAVE EXPRESSED THEIR WILLINGN ESS TO FILE FORM NO. 1 AND 2 AND SETTLE THEIR DISPUTE UNDER THE SCHE ME. THEREFORE, ONCE THE ASSESSEES INTEND TO FILE A DECLARATION IN FORM NO.1 ALONG WITH UNDERTAKING AND EXPRESSED THEIR WILLINGNESS TO SETTLE PENDING DISPUTES REGARDING DIRECT TAXES, THEN THERE IS NO P OINT IN KEEPING APPEAL FILED BY THE ASSESSEES. WE, FURTHER NOTED THAT RECENTLY THE HONBLE JURISDICTIONAL HIGH COURT OF MADRAS HAS C ONSIDERED 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 2 020 FOR AVAILING THE BENEFIT OF VIVAD SE VISHWAS SCHEME, 2020, WHERE THE HONBLE HIGH COURT HAS DISMISSED THE APPEAL 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 5 ITA NOS.3020 TO 3028/CHNY/2018 & 3060 TO 3063/CHNY/2018 RELEVANT PORTIONS OF THE OBSERVATIONS OF THE HONBL E HIGH COURT 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 KU MAR, LEARNED SENIOR STANDING COUNSEL AND MS. K.G.USHA RANI, L EARNED 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 SCHEME ( VVS SCHEME' FOR BREVITY) AND IN THIS REGARD, THE ASSESSEE IS TAKING STEPS TO FILE THE AP PLICATION / 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 ACCOUN T OF CERTAIN SUBSEQUENT DEVELOPMENTS. THE GOVERNMENT OF INDIA EN ACTED THE DIRECT TAX VIVAD SE VISHWAS ACT, 2020 (ACT 3 OF 202 0) TO PROVIDE FOR RESOLUTION OF DISPUTED TAX AND FOR MATTERS CONNECTE D THEREWITH OR INCIDENTAL THERETO. THE ACT OF THE PARLIAMENT RECEI VED 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 PENDIN G AT DIFFERENT LEVELS EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BEFO RE THE TRIBUNAL OR BEFORE THE HIGH COURT OR B EFORE THE HON'BLE SUPREM E 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 DE CLARATION 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, NOTWITHSTANDING ANYTH ING 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 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 PAYABLE SHALL BE ONE-HALF OF THE AMOUNT IN THE TABLE STIPUL ATED IN SECTION 3 CALCULATED ON SUCH ISSUE, IN SUCH A MANNER AS MAY B E PRESCRIBED. THE SECOND PROVISO DEALS WITH THE CASES, WHERE THE MATT ER IS BEFORE THE COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RESOLU TION PANEL. THE THIRD PROVISO DEALS WITH CASES, WHERE THE ISSUE IS PENDING BEFORE THE INCOME TAX APPELLATE TRIBUNAL. THE FILING OF THE D ECLARATION IS AS PER SECTION 4 OF THE ACT AND THE PARTICULARS TO BE FURN ISHED 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 6 ITA NOS.3020 TO 3028/CHNY/2018 & 3060 TO 3063/CHNY/2018 IMPOSITION OF PENALTY IN CERTAIN CASES. SECTION 9 O F THE ACT DEALS WITH CASES, WHERE THE ACT 3 OF 2020 WILL NOT BE APPLICAB LE. 7. AS OBSERVED, THE ASSESSEE IS GIVEN LIBERTY TO RE STORE THIS APPEAL IN THE EVENT THE ULTIMATE DECISION TO BE TAKEN ON THE DECLARATION TO BE FILED BY THE ASSESSEE UNDER SECTION 4 OF THE SAID A CT IS NOT IN FAVOUR OF THE ASSESSEE. IF SUCH A PRAYER IS MADE, THE REGISTR Y SHALL ENTERTAIN THE PRAYER WITHOUT 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 RESTORATION, THE REGISTRY SHALL PLACE SUCH PETITION BEFORE THE DIVISION BENCH FOR O RDERS. 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 COMPE TENT AUTHORITY SHALL PROCESS THE APPLICATION / DECLARATION IN ACCO RDANCE WITH THE ACT AND PASS APPROPRIATE ORDERS AS EXPEDITIOUSLY AS POS SIBLE PREFERABLY WITHIN A PERIOD OF SIX (6) WEEKS FROM THE DATE ON W HICH THE DECLARATION IS FILED IN THE PROPER FORM. 6. IN THE LIGHT OF THE ABOVE DECISION OF THE HONBL E HIGH COURT OF MADRAS, AND BY TAKING NOTE OF THE FACT THAT SOME ASSESSEES HAVE ALREADY FILED DECLARATION IN FORM NO.1 ALONG WITH FORM NO.2 TO THE DESIGNATED AUTHORITY AND RECEIVED FORM 3 AND SOM E ASSESSEES HAD ALREADY FILED FORM NO. 1 & 2 AND AWAITING FORM NO. 3 FROM THE DESIGNATED AUTHORITY AND ALSO THE FACT THAT REMAINI NG ASSESSEES ARE WILLING TO FILE FORM NO. 1 AND 2 WITHIN THE DUE DAT E PRESCRIBED FOR THIS PURPOSE, WE DISMISS THE APPEALS FILED BY THE ASSES SEES AS WITHDRAWN. HOWEVER, A LIBERTY IS GIVEN TO THE ASSES SEES TO RESTORE THE APPEALS, IN THE EVENT OF THE DESIGNATED AUTH ORITY, 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 CASES WHERE THE 7 ITA NOS.3020 TO 3028/CHNY/2018 & 3060 TO 3063/CHNY/2018 APPEAL IS FILED BY THE REVENUE AND THE ASSESSEES H AVE FOR ANY REASON OPTED OUT FROM THE SCHEME OR THE APPLICANTS UNDER THE SCHEME MISREPRESENTS ANY FACTS WHICH RESULTED IN RE JECTION OF APPLICATION FILED UNDER THE SCHEME, THEN THE PROVIS IONS OF SECTION 4(6) OF THE ACT, SHALL BE APPLICABLE TO ALL APPEALS AND IN SUCH CASES, ALL THE PROCEEDINGS AND 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 ASSESSEES SHOULD PROMPTLY INFORM TH E ASSESSING OFFICER ABOUT THEIR DECISION TO OPT OUT OF THE SCHE ME OR REJECTION OF APPLICATION BY THE DESIGNATED AUTHORITY TO THE ASSE SSING OFFICER, SO AS TO ENABLE TO FILE MISCELLANEOUS APPLICATION TO R ESTORE THE APPEAL. 7. IN THE RESULT, ALL THESE APPEALS FILED BY THE AS SESSEES AS WELL AS REVENUE ARE DISMISSED AS WITHDRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST APRIL, 2021 SD/- SD/- ( . ) ( . ) ( V.DURGA RAO ) ( G.MANJUNATHA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /CHENNAI, /DATED 1 ST APRIL, 2021 DS 8 ITA NOS.3020 TO 3028/CHNY/2018 & 3060 TO 3063/CHNY/2018 ! $! /COPY TO: 1. APPELLANT 2. RESPONDENT 3. % () /CIT(A) 4. % /CIT 5. ! + /DR 6. . /GF .