ITO 21(2)(2), MUMBAI V. MATOSHREE REALTORS, MUMBAI

ITA 3504/MUM/2015

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9491 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 08-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Competent authority; Condonation of delay
• Section: 260A; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (VIRTUAL COURT) D BENCH, MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN , HON'BLE ACCOUNTANT MEMBER ITA NO. 2303 /MUM/2015 (A.Y: 20 09 - 10) M/S. MATOSHREE REALTORS B/202, MATOSHREE TOWER PADMABAI TA KKAR MARG, MAHIM, MUMBAI - 400016 PAN : AAMFM5625M V. JCIT, RANGE - 18(3) PIRAMAL CHAMBERS, LALBAUG PAREL, MUMBAI 400012 (APPELLANT) (RESPONDENT) ITA NO. 3504/MUM/2015 (A.Y: 2009 - 10) INCOME TAX OFFICER WARD NO. 21(2)(2) ROOM NO. 111, 1 ST FLOOR PIRAMAL CHAMBERS, LALBAUG PAREL, MUMBAI 400 012 V. M/S. MATOSHREE REALTORS B/202, MATOSHREE TOWER PADMABAI TA KKAR MARG, MAHIM, MUMBAI - 400016 PAN : AAMFM5625M (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. NEELAM JADHAV DEPARTMENT BY : SHRI VINAY SINHA DATE OF HEARING : 15.06 .2021 DATE OF PRONOUNCEMENT : 15.06.2021 2 ITA NO. 2303 & 3504 /MUM/2015 (A.Y: 2009 - 10) M/S. MATOSHREE REALTORS O R D E R PER BENCH 1. TH ESE APPEAL ARE FILED BY THE ASSESSEE AND REVENUE AGAINST ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 33 , MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 27.03.2015 FOR THE A.Y . 2009 - 10 . 2. AT THE TIME OF HEARING THE APPEALS VIRTUALLY, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE OPTED FOR VIVAD SE VISHWAS SCHEME AND FILED DECLARATION AND UNDERTAKING IN FORM - 1 TO SETTLE THE LITIGATION AND FORM 3 IS RECEIVED FROM THE REVENUE. FURTHER, LD. COUNSEL FOR THE ASSESSEE FILED A LETTER DATED 1 4 TH JUNE, 2021 AND SUBMITTED AS UNDER: - REF: MATOSHREE REALTORS ITA NO. 3504/MUM/2015, DEPARTMENT APPEAL AY 2009 - 2010 FIXED FOR HEARING ON: 15/06/2021 SUB: REQUEST FOR ADJOURNMENT RESPECTED SIR, THE AFORESAID APPEAL IS FIXED FOR HEARING ON 15/06/2021 AT SR. NO. 2. IN THIS CASE THE ASSESSEE HAS OPTED FOR VIVAD SE VISWAS SCHEME, 2020. FORM 3 WAS ALSO ISSUED BY THE DESIGNATED AUTHORITY ON 23/04/2021. 3. ON A PERUSAL OF THE ABOVE LETTER FILED BY THE AS SESSEE AND ENCLOSED COPY OF FORM - 3 IT IS NOTICED THAT ASSESSEE HAS ALREADY FILED DECLARATION AND UNDERTAKING IN FORM - 1 UNDER VIVAD SE VISHWAS SCHEME AND RECEIVED 3 ITA NO. 2303 & 3504 /MUM/2015 (A.Y: 2009 - 10) M/S. MATOSHREE REALTORS FORM - 3 FROM THE REVENUE ACCEPTING THE SAID DECLARATION IN BOTH THESE APPEALS . IN VIEW OF THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE SINCE ASSESSEE HAS OPTED TO SETTLE LITIGATION UNDER VIVAD SE VISHWAS SCHEME NO PURPOSE WOULD SERVE KEEPING THE APPEALS PENDING. 4. THE HON'BLE MADRAS HIGH COURT IN THE CASE OF M/S. NANNUSAMY MOHAN (HUF) V. ACIT IN T.C.A. NO. 372 OF 2020 DATED 16.10.2020 ON AN APPEAL BY THE ASSESSEE U/S. 260A OF THE ACT, HELD AS UNDER: - THIS APPEAL HAS BEEN FILED BY THE ASSESSEE UNDER SECTION 260 A OF THE INCOME TAX ACT, 1961 ('THE ACT' FOR BREVITY), CHALLENGING THE ORDER DATED 03.12.2018 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, CHENNAI, 'A' BENCH ('THE TRIBUNAL' FOR BREVITY) IN I.T.A.NO.2576/CHNY/2017 FOR THE ASSESSMENT YEAR 2011 - 12. THE APPEAL IS ADMITTED ON THE FOL LOWING SUBSTANTIAL QUESTIONS OF LAW: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE INCOME TAX APPELLATE TRIBUNAL WAS PERVERSE IN NOT CONSIDERING ALL THE GROUNDS RAISED IN CROSS OBJECTION, VIZ. (1) CLAIM OF EXEMPTION IN RESPECT OF SALE OF AGRI CULTURAL LAND (2) CLAIM OF DEDUCTION BY WAY OF COST INFLATION INDEX AND COST OF PLOT OF LAND PURCHASED IN COMPUTING DEDUCTION U/S.54F OF INCOME TAX ACT? 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE INCOME TAX APPELLATE TRIBUNAL WAS RIGHT IN L AW IN UPHOLDING THE DISALLOWANCE OF COST OF IMPROVEMENT IN PROVIDING MODERN KITCHEN IN THE FLATS PURCHASED? 2. WE HAVE HEARD MR.M.P.SENTHIL KUMAR, LEARNED COUNSEL APPEARING FOR THE APPELLANT/ASSESSEE AND MR.T.R.SENTHIL KUMAR, LEARNED SENIOR STANDING COUNS EL AND M/S.K.G.USHA RANI, LEARNED COUNSEL FOR THE RESPONDENT/REVENUE. 3. THE LEARNED COUNSEL FOR THE APPELLANT / ASSESSEE, ON INSTRUCTIONS, SUBMITTED THAT THE APPELLANT / ASSESSEE INTENDS TO AVAIL 4 ITA NO. 2303 & 3504 /MUM/2015 (A.Y: 2009 - 10) M/S. MATOSHREE REALTORS THE BENEFIT OF VIVAD SE VISHWAS SCHEME ('VVS SCHEME' FOR BREVITY) AND IN THIS REGARD, THE ASSESSEE IS TAKING STEPS TO FILE THE APPLI CATION / DECLARATION IN FORM NO.I. 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 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 DIFFERENT LEVELS EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BE FORE THE TRIBUNAL OR BEFORE 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 MEANS A PERSON, WHO FILES A DECLARATION UNDER SECTION 4 ON OR BEFORE THE LAST DATE FILES A DECLARATION TO THE DESIGNATED AUTHORITY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4 IN RESPECT OF TAX ARREARS, THEN, NOTWITHSTANDING ANYTHING CONTAINED IN THE INCOME TAX ACT OR ANY OTHER LAW FOR THE TIME BEING IN FORCE, THE AM OUNT 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 CASE, 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 SECTION 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 THE COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RESOLUTION PANEL. THE THIRD PROVISO DEALS WITH CASES, WHERE THE ISSUE IS PENDING BEFORE THE INCOME 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 SECTION S OF SECTION 4 . SECTION 5 OF THE ACT DEALS WITH THE TIME AND MANNER OF THE PAYMENT AND SECTION 6 D EALS WITH IMMUNITY FROM INITIATION 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 2020 WILL NOT BE APPLICABLE . 7. AS OBSERVED, THE ASSESSEE IS GIVEN LIBERTY TO RESTORE 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 ASSESSEE. IF SUCH A PRAYER IS MADE, THE 5 ITA NO. 2303 & 3504 /MUM/2015 (A.Y: 2009 - 10) M/S. MATOSHREE REALTORS REGISTRY 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 MADE BY THE ASSESSEE BY FILING A MISC ELLANEOUS PETITION FOR RESTORATION, THE REGISTRY SHALL PLACE SUCH PETITION BEFORE THE DIVISION BENCH FOR ORDERS. 8. IN THE LIGHT OF THE ABOVE, WE DIRECT THE APPELLANT / ASSESSEE TO FILE THE FORM NO.I ON OR BEFORE 20.11.2020 AND THE COMPETENT AUTHORITY SHAL L PROCESS THE APPLICATION / DECLARATION IN ACCORDANCE WITH THE ACT AND PASS APPROPRIATE ORDERS AS EXPEDITIOUSLY AS POSSIBLE PREFERABLY WITHIN A PERIOD OF SIX (6) WEEKS FROM THE DATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FORM. 5. FOLLOWING THE ABOVE DECISION OF THE HON'BLE MADRAS HIGH COURT, THE SE APPEAL S ARE DISPOSED OFF ACCORDINGLY, WITH LIBERTY TO THE ASSESSEE /REVENUE TO FILE A MISCELLANEOUS APPLICATION, IN THE EVENT OF EITHER THE ASSESSEE NOT OPTING FOR VIVAAD SE VISHWAS SCHEME AS CONTEMPLATED BY IT BEFORE THE DUE DATE OF THE SCHEME IN OPERATION OR IN THE EVENT OF THE DEPARTMENT NOT ACCEPTING THE APPLICATION MADE BY THE ASSESSEE UNDER THE SAID SCHEME, THE APPEAL OF THE ASSESSEE /REVENUE SHALL BE RECALLED BY THE TRIBUNAL AND RESTORED FOR ADJUDICATIO N ON MERITS. IT IS FURTHER MADE CLEAR THAT IF THE ASSESSEE /REVENUE SEEKS TO RESTORE THE APPEAL IN THE EVENT OF ASSESSEES DECLARATION MADE UNDER VIVAAD SE VISHWAS SCHEME IS NOT ACCEPTED BY THE REVENUE, THE REGISTRY SHALL NOT INSIST FOR FILING OF APPLICATI ON FOR CONDONATION OF DELAY, IF THE MISCELLANEOUS APPLICATION FOR RECALLING THE ORDER IS FILED BEYOND TIME ON ACCOUNT OF DELAYED COMMUNICATION OF OUTCOME UNDER VIVAAD SE VISHWAS SCHEME IN VIEW OF 6 ITA NO. 2303 & 3504 /MUM/2015 (A.Y: 2009 - 10) M/S. MATOSHREE REALTORS THE DECISION OF THE HON'BLE MADRAS HIGH COURT IN THE CASE OF M/S. NANNUSAMY MOHAN (HUF) V. ACIT IN T.C.A. NO. 372 OF 2020 DATED 16.10.2020. WITH THESE OBSERVATIONS THE SE APPEAL S ARE DISMISSED AS WITHDRAWN. 6. IN THE RESULT, APPEAL OF THE ASSESSEE AND REVENUE ARE DISMISSED AS WITHDRAWN. ORDER PRONOUNCED IN THE VIRTUAL COURT ON 15.06.2021 . SD/ - SD/ - ( S. RIFAUR RAHMAN) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 15/06/2021 GIRIDHAR, SR.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM