DCIT Non Corporate Circle 2, CHENNAI V. P.Viajyalakshmi, CHENNAI

ITA 341/CHNY/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 6058 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 12-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G JOHNSON; CH
• Assessee Lawyers: N ARJUN RAJ CA MR S SRIDHAR
• Keywords: Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: CHENNAI . . , . , BEFORE SHRI DUVVURU R.L. REDDY, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER SL.NO. ITA NO. AY APPELLANT RESPONDENT 1 & 2 339 & 340/CHNY/2019 2012-13 & 2013-14 THE DY. COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE-2, CHENNAI. MR. N.PALANIVELU (HUF), NO.3, DANIEL STREET, T.NAGAR, CHENNAI-600 017. (PAN: AAAHN 0186 Q) DEPARTMENT BY : MR.G. JOHNSON, ADDL.CIT ASSESSEE BY : MR.N.ARJUNRAJ, CA FOR MR.S.SRIDHAR, ADV. 3 & 4 341 & 342/CHNY/2019 2012-13 & 2013-14 THE DY. COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE-2, CHENNAI. MS. P. VIJAYALAKSHMI, NO.3, DANIEL STREET, T.NAGAR, CHENNAI-600 017. (PAN: AAEPV 6624 P) DEPARTMENT BY : MR.G. JOHNSON, ADDL.CIT ASSESSEE BY : MR.N.ARJUNRAJ, CA FOR MR.S.SRIDHAR, ADV. 5 2012/CHNY/2015 2008-09 MR.P.MURALI, PROP. M/S.VIRALLI ENTERPRISES, NO.114/2, ANNA SALAI, NAGALKENI, CHROMEPET, CHENNAI-600 044. (PAN: AEEPM 4547 A) THE DY. COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE-1, TAMBARAM, CHENNAI-600 045. / APPELLANT BY : MR.S.SRIDHAR, ADV. / RESPONDENT BY : MR.G. JOHNSON, ADDL.CIT 6 3256/CHNY/2018 2015-16 MS.UDAYAKUMAR DHANLAKSHMI, NO.40, RAZA HYDER STREET, MOUNT ROAD, CHENNAI-600 002. (PAN: AHCPD 0053 D) THE INCOME TAX OFFICER, NON-CORPORATE WARD- 9(5), CHENNAI-34. / APPELLANT BY : MR.D. ANAND, ADV. / RESPONDENT BY : MR.G. JOHNSON, ADDL.CIT 7 3406/CHNY/2019 2011-12 MR.R.S.SURIYA, NO.36, ARCOT ROAD, CHENNAI-17. (PAN: ALRPS 0353 G) THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-II(5), CHENNAI. VIVAD SE VISHWAS SCHEME ITA NOS.339 & 340/C/19, 341 & 342/C/19, 2012/C/15, 3256/C/18, 3406/C/19, 1196/C/19 & 1122/C/19 :: 2 :: / O R D E R PER BENCH: THIS BUNCH OF 09 APPEALS FILED BY DIFFERENT ASS ESSEES/REVENUE ARE DIRECTED AGAINST ORDERS OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), CHENNAI, EVEN DATED 20.11.2018, 20.11.2018, 28.08.2 015, 24.08.2018, 27.09.2019, 04.02.2019 & 05.02.2019 FOR RESPECTIVE ASSESSMENT YEARS. 2. WE HAVE HEARD THE COUNSELS FOR THE ASSESSEES AN D THE LD. DR AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AT T HE TIME OF HEARING, LEARNED COUNSELS FOR THE ASSESSEES HAVE MADE A STA TEMENT AT BAR THAT THE ASSESSEES WANTS TO UTILIZE THE DIRECT TAXES VIVAD SE VISHWAS SCHEME, / APPELLANT BY : MS.T.SANDHYAARTI, CA / RESPONDENT BY : MR.G. JOHNSON, ADDL.CIT 8 1196/CHNY/2019 2013-14 MR.T.R.MANI, 23, D SILVA ROAD, MYLAPORE, CHENNAI-600 004. (PAN: AHOPM 7428 D) THE INCOME TAX OFFICER, NON-CORPORATE WARD- 1(3), CHENNAI. / APPELLANT BY : MR.N.ARJUNRAJ, CA FOR MR.S.SRIDHAR, ADV. / RESPONDENT BY : MR.G. JOHNSON, ADDL.CIT 9 1122/CHNY/2019 2009-10 M/S.GUPTA AUTOMOBILES, NO.112/8, G.P.ROAD, LAKSHMI ARCADE, ANNA SALAI, CHENNAI-600 002. (PAN: AAAFG 0557 C) THE INCOME TAX OFFICER, NON-CORPORATE WARD- 4(3), CHENNAI. / APPELLANT BY : MR.N.ARJUNRAJ, CA FOR MR.S.SRIDHAR, ADV. / RESPONDENT BY : MR.G. JOHNSON, ADDL.CIT / DATE OF HEARING : 05-01-2021 / DATE OF PRONOUNCEMENT : 05 - 01 - 2021 VIVAD SE VISHWAS SCHEME ITA NOS.339 & 340/C/19, 341 & 342/C/19, 2012/C/15, 3256/C/18, 3406/C/19, 1196/C/19 & 1122/C/19 :: 3 :: 2020 TO SETTLE PENDING DISPUTE RELATING TO DIRECT TAXES AND IN THIS REGARD SOME OF ASSESSEES HAVE FILED FORM NO 1 AND 2 AND A WAITING FORM NO. 3 FROM THE DESIGNATED AUTHORITY. IN SOME CASES, THE A SSESSEES HAVE RECEIVED FORM NO. 3 FROM THE DESIGNATED AUTHORITY AND IN SOM E CASES, THE ASSESSEE HAVE FILED LETTER AND EXPRESSED THEIR WILLINGNESS T O FILE FORM NO. 1 AND 2 BEFORE THE DESIGNATED AUTHORITY. 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 17TH MARCH, 2020 AND BECAME DIRECT TAXES VIVAD SE VISHWAS ACT, 2020. AS PER THE SAID SCHEME, ASSESSEES ARE ALLOWE D TO SETTLE DIRECT TAX DISPUTE IN A MANNER AND PROCEDURE PRESCRIBED THEREI N BY FILING NECESSARY DECLARATION AND UNDERTAKING. THE SCHEME HAS ALSO SP ECIFIED THE AMOUNT OF TAXES, INTEREST, AND 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 5 CONFIRMING PAYMENT MADE UNDER THE SCHEME AND GRANT IMMUNITY FROM PENA LTY AND PROSECUTION. VIVAD SE VISHWAS SCHEME ITA NOS.339 & 340/C/19, 341 & 342/C/19, 2012/C/15, 3256/C/18, 3406/C/19, 1196/C/19 & 1122/C/19 :: 4 :: 4. IN THESE APPEALS, SOME ASSESSEES HAVE FILED DEC LARATION IN FORM NO.1 ALONG WITH UNDERTAKING WAIVING RIGHTS FOR ANY REMED Y IN FORM NO. 2 TO THE DESIGNATED AUTHORITY AND HAS ALSO RECEIVED FORM 3. IN SOME CASES, FORM NO 1 AND 2 HAS BEEN FILED AND AWAITING FORM NO. 3 F ROM THE DESIGNATED AUTHORITY AND IN SOME CASES, THE ASSESSEES HAVE EX PRESSED THEIR WILLINGNESS TO FILE FORM NO. 1 AND 2 AND SETTLE THE IR DISPUTE UNDER THE SCHEME. THEREFORE, ONCE THE ASSESSEES INTEND TO FI LE A DECLARATION IN FORM NO.1 ALONG WITH UNDERTAKING AND EXPRESSED THEIR WIL LINGNESS TO SETTLE PENDING DISPUTES REGARDING DIRECT TAXES, THEN THERE IS NO POINT IN KEEPING APPEAL FILED BY THE ASSESSEES. WE, FURTHER NOTED THAT RECENTLY THE HONBLE JURISDICTIONAL HIGH COURT OF MADRAS HAS CONSIDERED AN IDENTICAL APPLICATION FILED BY AN ASSESSEE IN THE CASE OF M/S. NANNU SAMY MOHAN (HUF) VS. ACIT IN T.C.A NO.372 OF 2020 FOR AVAILING THE BENEF IT OF VIVAD SE VISHWAS SCHEME, 2020, WHERE THE HONBLE HIGH COURT HAS D ISMISSED THE APPEAL FILED BY THE PETITIONER AS WITHDRAWN, BUT ALLOWED L IBERTY TO THE ASSESSEE TO RESTORE THE APPEAL IN THE EVENT THE DESIGNATED AU THORITY FOR ANY REASON REJECT APPLICATION FILED BY THE ASSESSEE UNDER SEC TION 4 OF THE ACT. THE 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 KUMAR, LEA RNED SENIOR STANDING COUNSEL AND MS. K.G.USHA RANI, LEARNED COUNSEL FOR THE RE SPONDENT/REVENUE. 3. THE LEARNED COUNSEL FOR THE APPELLANT / ASSESSEE , ON INSTRUCTIONS, SUBMITTED THAT THE APPELLANT / ASSESSEE INTENDS TO AVAIL THE BENEF IT OF VIVAD SE VISHWAS SCHEME VIVAD SE VISHWAS SCHEME ITA NOS.339 & 340/C/19, 341 & 342/C/19, 2012/C/15, 3256/C/18, 3406/C/19, 1196/C/19 & 1122/C/19 :: 5 :: (VVS SCHEME' FOR BREVITY) AND IN THIS REGARD, 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 VIVAD SE VISHWAS ACT, 2020 (ACT 3 OF 2020) TO PROVIDE FOR RESOLUTION OF DISPUTED TAX AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO. THE ACT OF THE PARLIAMENT RE CEIVED 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 DIFFERENT LEVELS EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL OR BEFOR E THE HIGH COURT OR BEFORE THE HON'BLE SUPREME COURT OF INDIA. UNDER SECTION 2(J) 'DISPUTED TAX' HAS BEEN DEFINED. IN TERMS OF SECTION 3, WHERE A DECLARANT M EANS A PERSON, WHO FILES A DECLARATION UNDER SECTION 4 ON OR BEFORE THE LAST D ATE FILES A DECLARATION TO THE DESIGNATED AUTHORITY IN ACCORDANCE WITH THE PROVISI ONS OF SECTION 4 IN RESPECT OF TAX ARREARS, THEN, NOTWITHSTANDING ANYTHING CONTAIN ED IN THE INCOME TAX ACT OR ANY OTHER LAW FOR THE TIME BEING IN FORCE, THE AMOUNT P AYABLE BY THE DECLARANT SHALL BE DETERMINED IN TERMS OF SECTION 3(A-C) THEREUNDER. 6. THE FIRST PROVISO TO SECTION 3 STATES THAT IN CA SE WHERE AN APPEAL OR WRIT PETITION OR SPECIAL LEAVE PETITION IS FILED BY THE INCOME TA X AUTHORITY ON ANY ISSUE BEFORE THE APPELLATE FORUM, THE AMOUNT PAYABLE SHALL BE ON E-HALF OF THE AMOUNT IN THE TABLE STIPULATED IN SECTION 3 CALCULATED ON SUCH IS SUE, IN SUCH A MANNER AS MAY BE PRESCRIBED. THE SECOND PROVISO DEALS WITH THE CASES , WHERE THE MATTER IS BEFORE THE COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RE SOLUTION PANEL. THE THIRD PROVISO DEALS WITH CASES, WHERE THE ISSUE IS PENDIN G BEFORE THE INCOME TAX APPELLATE TRIBUNAL. THE FILING OF THE DECLARATION I S 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 MAN NER OF THE PAYMENT AND SECTION 6 DEALS WITH IMMUNITY FROM INITIATION OF PROCEEDING S IN RESPECT OF OFFENCE 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 TAKEN ON THE DECLARATION TO BE FILED BY THE ASSESSEE UNDER SECTION 4 OF THE SAID ACT IS NOT IN FAVOUR OF THE A SSESSEE. IF SUCH A PRAYER IS MADE, THE REGISTRY SHALL ENTERTAIN THE PRAYER WITHOUT INS ISTING UPON ANY APPLICATION TO BE FILED FOR CONDONATION OF DELAY IN RESTORATION OF TH E APPEAL AND ON SUCH REQUEST MADE 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 COMPETENT AUTH ORITY SHALL PROCESS THE APPLICATION / DECLARATION IN ACCORDANCE WITH THE AC T AND PASS APPROPRIATE ORDERS AS EXPEDITIOUSLY AS POSSIBLE PREFERABLY WITHIN A PERIO D OF SIX (6) WEEKS FROM THE DATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FOR M. VIVAD SE VISHWAS SCHEME ITA NOS.339 & 340/C/19, 341 & 342/C/19, 2012/C/15, 3256/C/18, 3406/C/19, 1196/C/19 & 1122/C/19 :: 6 :: 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 ASSESSEES HAD ALREA DY FILED FORM NOS.1 & 2 AND AWAITING FORM NO. 3 FROM THE DESIGNATED AUTHO RITY AND ALSO THE FACT THAT REMAINING ASSESSEES ARE WILLING TO FILE FORM NOS.1 AND 2 WITHIN THE DUE DATE PRESCRIBED FOR THIS PURPOSE, WE DISMISS TH E APPEALS FILED BY THE ASSESSEES AS WITHDRAWN. HOWEVER, A LIBERTY IS GI VEN TO THE ASSESSEES TO RESTORE THE APPEALS, IN THE EVENT OF THE DESIGNA TED 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 REVENUE AND THE ASSESSEES HAVE FOR ANY REAS ON OPTED OUT FROM THE SCHEME OR THE APPLICANTS UNDER THE SCHEME MISREPRES ENTS ANY FACTS WHICH RESULTED IN REJECTION OF APPLICATION FILED UNDER TH E SCHEME, THEN THE PROVISIONS OF SECTION 4(6) OF THE ACT, SHALL BE APP LICABLE 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 THE ASSE SSING OFFICER ABOUT THEIR DECISION TO OPT OUT OF THE SCHEME OR REJECTIO N OF APPLICATION BY THE DESIGNATED AUTHORITY TO THE ASSESSING OFFICER, SO A S TO ENABLE TO FILE MISCELLANEOUS APPLICATION TO RESTORE THE APPEAL. VIVAD SE VISHWAS SCHEME ITA NOS.339 & 340/C/19, 341 & 342/C/19, 2012/C/15, 3256/C/18, 3406/C/19, 1196/C/19 & 1122/C/19 :: 7 :: 6. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEES AS WELL AS THE REVENUE ARE DISMISSED AS WITHDRAWN. ORDER PRONOUNCED ON THE 05 TH DAY OF JANUARY, 2021, IN CHENNAI. SD/- SD/- ( . ) (S. JAYARAMAN) /ACCOUNTANT MEMBER ( . . ! ) (DUVVURU R.L. REDDY) /JUDICIAL MEMBER /CHENNAI, /DATED: 05 TH JANUARY, 2021. TLN /COPY TO: 1. /APPELLANT 4. /CIT 2. /RESPONDENT 5. /DR 3. ( ) /CIT(A) 6. ! /GF