K. PRAMOD KUMAR JAIN, CHENNAI V. ITO, NCW - 5 (4), CHENNAI

ITA 3309/CHNY/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 7133 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 03-12-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reasonable cause; Competent authority; Condonation of delay
• Section: 6

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: CHENNAI , , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER SL. NO. ./ ITA NUMBER ! ' # / ASSESSMENT YEAR / APPELLANT $% & / RESPONDENT 1. 3305/CHNY/2019 2011-12 MRS. REKHA SUNIL JAIN, 39, KALATHI PILLAI STREET, SOWCARPET, CHENNAI 600 003. [PAN: AACPC 5119L] THE INCOME TAX OFFICER, NON CORPORATE WARD- 6(1), CHENNAI. 2. 3306/CHNY/2019 2012-13 M/S. KANHAYALAL SUNIL KUMAR HUF, 39, KALATHI PILLAI STREET, SOWCARPET, CHENNAI 600 003. [PAN: AADHK 8118G] THE INCOME TAX OFFICER, NON CORPORATE WARD- 5(1), CHENNAI. 3. 3309/CHNY/2019 2012-13 SHRI K.PRAMOD KUMAR JAIN, 39, MISHRI KRUPA, KALATHI PILLAI STREET, SOWCARPET, CHENNAI 600 003. [PAN: AAIPP 2443C] THE INCOME TAX OFFICER, NON CORPORATE WARD- 5(4), CHENNAI. & ' ( / APPELLANT BY : SHRI R. PADMANABHAN, C.A $% & ' ( /RESPONDENT BY : SHRI SURESH PERIASAMY, JCIT 4. 455/CHNY/2019 2010-11 M/S. SUNIL KUMAR BOTHRA & SONS HUF, 13, VAIKUNDA VATHIYAR STREET, SOWCARPET, CHENNAI 600079. [PAN: AABHS 0108N] THE INCOME TAX OFFICER, NON CORPORATE WARD- 6(3), CHENNAI. & ' ( / APPELLANT BY : SHRI R.K.V. SUNDAR, ADVOCATE $% & ' ( /RESPONDENT BY : SHRI SURESH PERIASAMY, JCIT ITA NO.3305/CHNY/2019 & 4 OTHERS (VSVS) :- 2 -: 5. 2737/CHNY/2018 2015-16 SHRI PADAM CHAND BAGMAR, 30, CHANDRAPPA MUDALI STREET, SOWCARPET, CHENNAI 600 079. [PAN: AABHS 0108N] THE INCOME TAX OFFICER, NON-CORPORATE WARD- 5(4), CHENNAI. & ' ( / APPELLANT BY : SHRI M. ABHISHEK, C.A $% & ' ( /RESPONDENT BY : SHRI SURESH PERIASAMY, JCIT ) ' * + /DATE OF HEARING : 05.01.2021 ,-#' ' * + / DATE OF PRONOUNCEMENT : 05.01.2021 . / O R D E R PER BENCH: THIS BUNCH OF FIVE APPEALS FILED BY DIFFERENT ASSE SSEES ARE DIRECTED AGAINST THE ORDERS OF LEARNED COMMISSIONER OF INCOM E TAX (APPEALS), CHENNAI EVEN DATED 12.09.2019 / 16.09.2019 / 31.07.2019 / 2 0.11.2018 / 27.06.2018 FOR RESPECTIVE ASSESSMENT YEARS. 2. AT THE OUTSET, WE FIND THAT APPEALS FILED BY TH E ASSESSEES IN THE ABOVE CASES ARE TIME BARRED BY LIMITATION FOR WHICH NECES SARY PETITION FOR CONDONATION OF DELAY ALONG WITH AFFIDAVIT EXPLAINING THE REASON S FOR THE DELAY HAVE BEEN FILED. THE LEARNED COUNSELS SUBMITTED THAT ASSESSEE S COULD NOT FILE APPEALS WITHIN THE TIME ALLOWED UNDER THE ACT, THEREFORE DE LAY MAY BE CONDONED. HAVING HEARD BOTH SIDES AND CONSIDERED THE PETITION S FILED BY THE ASSESSEES FOR CONDONATION OF DELAY, WE ARE OF THE CONSIDERED VIEW THAT REASONS GIVEN BY ASSESSEES FOR NOT FILING THE APPEALS WITHIN THE TIM E ALLOWED UNDER THE ACT COMES UNDER REASONABLE CAUSE AS PROVIDED UNDER THE ACT FOR CONDONATION OF DELAY AND HENCE, DELAY IN FILING OF ABOVE APPEALS A RE CONDONED AND APPEALS FILED BY THE ASSESSEES ARE ADMITTED FOR ADJUDICATIO N. ITA NO.3305/CHNY/2019 & 4 OTHERS (VSVS) :- 3 -: 3. 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 WANTS TO UTILIZE THE DIRECT TAXES VIVAD SE VISHW AS SCHEME, 2020 TO SETTLE PENDING DISPUTE RELATING TO DIRECT TAXES AND IN THIS REGARD SOME OF ASSESSEES HAVE FILED FORM NOS.1 & 2 AND AWAITING FOR 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, THE ASSESSE E HAVE FILED LETTER AND EXPRESSED THEIR WILLINGNESS TO FILE FORM NO. 1 & 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 GOVERNMEN T OF INDIA HAS ANNOUNCED IN THE BUDGET, 2020, A DIRECT TAXES VIVAD SE VISHW AS SCHEME, 2020 TO SETTLE PENDING DISPUTE RELATING TO DIRECT TAXES AT VARI OUS APPELLATE FORUMS INCLUDING THE FIRST APPELLATE AUTHORITY, TRIBUNAL , HIGH COURT AND SUPREME 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 NECESSARY DECLARATION AND UNDERTAKING. THE SCHEME HAS ALSO SPECIFIED THE AMOUNT OF TAXES, INTEREST, A ND PENALTY, IF ANY PAYABLE UNDER THE ACT. IF AN ASSESSEE FILED A DECLARATION AND PAY SPECIFIED TAXES AS PER THE SCHEME AND WITHDRAW THE APPEAL PENDING BEFORE THE APPELLATE AUTHORITIES, THE DESIGNATED AUTHORITY SHALL PASS AN ORDER IN FORM NO.5 ITA NO.3305/CHNY/2019 & 4 OTHERS (VSVS) :- 4 -: CONFIRMING PAYMENT MADE UNDER THE SCHEME AND GRA NT IMMUNITY FROM PENALTY AND PROSECUTION. 5. IN THESE PRESENT APPEALS, SOME ASSESSEES HAVE FI LED 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 & 2 HAS BEEN FILED AND AWAITING FOR FORM NO. 3 FROM THE DESIGNATED AUTHORITY AND IN SOME CASES, THE ASSESSEES HAVE EXPRESSED THE IR WILLINGNESS 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 DISPU TES REGARDING DIRECT TAXES, THEN THERE IS NO POINT IN KEEPING APPEAL FILED BY T HE ASSESSEES. WE, FURTHER NOTED THAT RECENTLY THE HONBLE JURISDICTIONAL H IGH COURT OF MADRAS HAS CONSIDERED AN IDENTICAL APPLICATION FILED BY AN ASS ESSEE 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 RELEVANT PORTIONS OF THE OBSERVATIO NS OF THE HONBLE 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 KUMAR, LEARNED SENIOR STANDING COUNSEL AND MS. K.G.USHA RANI, LEARNED COUNSEL FOR THE RESPONDENT/REVENUE. ITA NO.3305/CHNY/2019 & 4 OTHERS (VSVS) :- 5 -: 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 APPLICATIO N / 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 2020) TO P ROVIDE FOR RESOLUTION OF DISPUTED TAX AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL 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 I NDIA. UNDER SECTION 2(J) 'DISPUTED TAX' HAS BEEN DEFINED. IN TERMS OF S ECTION 3, WHERE A DECLARANT MEANS A PERSON, WHO FILES A DECLARATION U NDER SECTION 4 ON OR BEFORE THE LAST DATE FILES A DECLARATION TO THE DES IGNATED AUTHORITY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4 IN RESP ECT OF TAX ARREARS, THEN, NOTWITHSTANDING ANYTHING CONTAINED IN THE INCOME TA X ACT OR ANY OTHER LAW FOR THE TIME BEING IN FORCE, THE AMOUNT PAYABLE BY THE DECLARANT SHALL BE DETERMINED IN TERMS 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 STIPULATED IN S ECTION 3 CALCULATED ON SUCH ISSUE, IN SUCH A MANNER AS MAY BE PRESCRIBED. THE SECOND PROVISO DEALS WITH THE CASES, WHERE THE MATTER IS BEFORE TH E COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RESOLUTION PANEL. T HE THIRD PROVISO DEALS WITH CASES, WHERE THE ISSUE IS PENDING BEFORE THE I NCOME TAX APPELLATE TRIBUNAL. THE 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. SECTION 5 OF THE ACT DEALS WITH THE TIME AND MANNER OF THE PAYMENT AND SECTION 6 DEALS WITH IMMUNITY FROM INIT IATION OF PROCEEDINGS IN RESPECT OF OFFENCE AND IMPOSITION OF PENALTY IN CERTAIN CASES. SECTION 9 OF THE ACT DEALS WITH CASES, WHERE THE ACT 3 OF 202 0 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 DECL ARATION 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 ENTERT AIN THE PRAYER WITHOUT INSISTING UPON ANY APPLICATION TO BE FILED FOR COND ONATION OF DELAY IN RESTORATION OF THE APPEAL AND ON SUCH REQUEST MADE BY THE ASSESSEE BY FILING A MISCELLANEOUS PETITION FOR RESTORATION, TH E REGISTRY SHALL PLACE SUCH PETITION BEFORE THE DIVISION BENCH FOR ORDERS. ITA NO.3305/CHNY/2019 & 4 OTHERS (VSVS) :- 6 -: 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 THE ACT AND PASS APPROPRIATE ORDERS AS EXPEDITIOUSLY AS POSSIBLE PRE FERABLY WITHIN A PERIOD OF SIX (6) WEEKS FROM THE DATE ON WHICH 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 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 ASSESSEES HAD ALREAD Y FILED FORM NO 1 & 2 AND AWAITING FOR FORM NO. 3 FROM THE DESIGNATED AUT HORITY AND ALSO THE FACT THAT REMAINING ASSESSEES ARE WILLING TO FILE FORM NO 1 & 2 WITHIN THE DUE DATE PRESCRIBED FOR THIS PURPOSE, WE DISMISS THE APPEALS FILED BY THE ASSESSEES AS WITHDRAWN. HOWEVER, A LIBERTY IS GIVEN TO THE ASSES SEES TO RESTORE THE APPEALS, IN THE EVENT OF THE DESIGNATED 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 CASES WHERE THE APPEAL IS FILED BY THE RE VENUE AND THE ASSESSEES HAVE FOR ANY REASON OPTED OUT FROM THE SCHEME OR TH E APPLICANTS UNDER THE SCHEME MISREPRESENTS ANY FACTS WHICH RESULTED IN RE JECTION OF APPLICATION FILED UNDER THE SCHEME, THEN THE PROVISIONS OF SECTION 4( 6) OF THE ACT, SHALL BE APPLICABLE TO ALL APPEALS AND IN SUCH CASES, ALL TH E PROCEEDINGS AND CLAIMS WHICH WERE WITHDRAWN UNDER SECTION 4 AND ALL THE CO NSEQUENCES UNDER THE INCOME-TAX ACT AGAINST THE DECLARANT SHALL BE DEEME D TO HAVE BEEN REVIVED. WE, FURTHER MAKE IT CLEAR THAT THE ASSESSEES SHOUL D PROMPTLY INFORM THE ASSESSING OFFICER ABOUT THEIR DECISION TO OPT OUT O F THE SCHEME OR REJECTION OF ITA NO.3305/CHNY/2019 & 4 OTHERS (VSVS) :- 7 -: APPLICATION BY THE DESIGNATED AUTHORITY TO THE ASSE SSING OFFICER, SO AS TO ENABLE TO FILE MISCELLANEOUS APPLICATION TO RESTORE THE AP PEAL. 7. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEE ARE DISMISSED AS WITHDRAWN. ORDER PRONOUNCED ON 05 TH JANUARY, 2021 IN CHENNAI. SD/ - ( ) (G. MANJUNATHA) /ACCOUNTANT MEMBER SD/ - ( ) (V. DURGA RAO) /JUDICIAL MEMBER / ) /CHENNAI, 0 /DATED: 05 TH JANUARY, 2021 EDN, SR. PS . ' $*12 32#* /COPY TO: 1. & /APPELLANT, 2. $% & /RESPONDENT, 3. 4* ( )/CIT(A), 4. 4* /CIT, 5. 25 $*6! /DR 6. 7 8) /GF