MULTI DIMENSIONAL ASSET & WEALTH CREATION LLP ( EARILER MULTI-DIMENSIONAL ASSET & WEALTH CREATION PRIVATE LIMITED), MUMBAI V. ITO WARD- 10(2)(4), MUMBAI

ITA 4349/MUM/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 6768 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 27-05-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 30-11-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 147; 68; 148; 143(3); 250; 246A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI BEFORE SHRI PRASHANT MAHARISHI, AM AND SHRI SUNIL KUMAR SINGH, JM ITA No. 4349/Mu m/ 2023 (Assess me nt Year: 2011-12) Multi Di me nsiona l Asset & Wealth Creation LLP ( Earlier multi di me nsional Asset & Wealth Creation P rivate Li mite d) C/408, Shirin S ohrab Palace, Nari ma n Point Eas t, Mu mbai-400 057 Vs. ITO Ward 10( 2) (4) Roo m No. 213, 2 nd Floor, Aa ykar B havan, Mu mbai-400 020 (Appellant) (Respondent) PAN No. AAGCM7603Q Assessee by : Mr. Vishal D. Shah, AR Revenue by : S mt. Mahita Nair, DR Dat e of hearing: 28. 05.2024 Date of pronouncement : 31. 05.2024 O R D E R PER PRASHANT MAHARISHI, AM: 01. ITA No.4349/Mum/2023 is filed by the assessee for A.Y. 2011-12, against the appellate order dated 16 th October, 2023, passed by the National Faceless Page | 2 ITA No.4349/Mum/2023 Multi Dimensional Asset & Wealth Creation LLP, A.Y. 11-12 Appeal Centre, Delhi [the learned CIT (A)], dismissing the appeal of the assessee, filed against the assessment order passed under Section 143(3) read with section 147 of the Income-tax Act, 1961 (the Act) dated 16 th December, 2016, passed by the Asst. Commissioner of Income Tax, Range 10(2)(4), Mumbai. 02. Assessee has raised following grounds of appeal:- “1. On the facts and under the circumstances of the case and in law, the Ld. CIT(A) erred in passing the order u/s 250 dated 16.10.2023 by dismissing the appeal which is bad in law. 2. On the facts and under the circumstances of the case and in law, the Ld. CIT(A) erred in confirming the disallowance made by the Ld. AO on account of unexplained cash credits u/s 68 amounting to Rs. 60,00,000/- without appreciating the fact that appellant had opted for Vivad se Vishwas (VSV) Scheme, 2020 for the A.Y. 2011-12. 3. a) On the facts and under the circumstances of the case and in law, the Ld. CIT(A) erred in ignoring the fact that appellant had filed all the relevant VSV Forms víz VSV-1 and VSV-2 on 29.01.2021 as prescribed, before the designated authority. b) On the facts and under the circumstances of the case and in law, the Ld. CIT(A) erred in stating that matter Page | 3 ITA No.4349/Mum/2023 Multi Dimensional Asset & Wealth Creation LLP, A.Y. 11-12 was not settled by clearing the disputed tax due vide Form VSV-5 without appreciating the fact that appellant had paid all the necessary tax as communicated by the designated authority to the appellant in Form VSV-3 (dated 09.02.2021 bearing Ack No.264810670090221) and also declared the same in Form VSV-4 (dated 20.04.2021 bearing Ack No.343249831200421) which is not processed till date due to reasons beyond the control of the appellant and thereby he was awaiting Final Order in Form VSV-5 from the Assessing officer. 4. On the facts and under the circumstances of the case and in law, the Ld. CIT(A) erred in stating that appellant was riddled with contradiction and confusion in as much as it pleaded for settlement of disputed demand under VSVs but later retracted before final settlement and pursued the appeal filed u/s 246A of the Income Tax Act without appreciating the fact that upon filing of the Form VSV-1 and Form VSV-2 and making payment of tax and reporting the same in Form VSV-4 filed in response to Form VSV-3, any appeal filed by the appellant shall be deemed to have been withdrawn. 5. On the facts and under the circumstances of the case and in law, the Ld. CIT(A) erred in appreciating the fact that appellant opting for VSV was deemed to have decided to withdraw the appeal and thus, appeal for the relevant year stands withdrawn and not dismissed. Page | 4 ITA No.4349/Mum/2023 Multi Dimensional Asset & Wealth Creation LLP, A.Y. 11-12 6. The appellant craves for leave to add, to alter and / or amend the above grounds of appeal, if necessary.” 03. Brief facts of the case shows that assessee filed its return of income declaring loss of ₹2,93,205/- on 3 rd January, 2013. Subsequently, case of the assessee was reopened by issue of notice under Section 148 of the Act dated 21 st March, 2016, assessee was found to be the beneficiary of accommodation entry provider. The assessment order under Section 143(3) read with section 147 of the Act was passed on 16 th December, 2016, determining the total income of the assessee at ₹62,93,206/-. The addition under Section 68 of the Act on account of accommodation entry of ₹60 lacs was made to the total income of the assessee. 04. The assessee preferred the appeal before the learned Commissioner of Income-tax (Appeals). Meanwhile, the appellant opted for VSV and filed form No.1 and form no.3 was issuedfor payment of ₹23,17,500/-. It is the claim of the assessee that assessee has also paid due tax as per Form no.4. However, it is also the fact that still assessee has not been issued Form no.5 for settlement of the dispute and dues under the scheme. The assessee submits that when it has paid the tax as determined in Form no.3, the assessee should be relieved of all the litigation but despite this the learned CIT (A) has confirmed the addition of ₹60 Page | 5 ITA No.4349/Mum/2023 Multi Dimensional Asset & Wealth Creation LLP, A.Y. 11-12 lacs. It was further stated by him that assessee has repeatedly requested for the requisite settlement of the dues under the scheme for issue of Form no.5. However, same is not issued to the assessee and further, even otherwise application of the assessee is not rejected. 05. The learned Departmental Representative submitted that she has also requested several time for the reason of non-issue of Form no.5 to the assessee but no response is received. 06. In view of the above facts, we find that when the assessee has paid due tax under the Vivad Se Vishwas Scheme, as determined in form no.3, the assessee should have been issued Form no.5 for the settlement of dispute in this appeal, if such application is not rejected. The assessee has also filed grievance for non-receipt of form no.5 and further, the learned Departmental Representative has also made an attempt but still form no.5 is not issued to the assessee and neither the application of the assessee is rejected. Over and above this, despite noting all these facts, the learned CIT (A) has dismissed the appeal of the assessee and confirmed the addition of ₹60 lacs under Section 68 of the Act. In fact he should have atleast called for the facts from ld AO about this and reasons for non issue of Form No 5. Therefore, in the Page | 6 ITA No.4349/Mum/2023 Multi Dimensional Asset & Wealth Creation LLP, A.Y. 11-12 interest of justice, we allow the appeal of the assessee to the extent of settlement of dispute under VSV by restoring it back to the file of the learned Assessing Officer, who may verify about payment of taxes determined in Form no.3 and thereafter, may pursue the matter about issue of Form no 5 in accordance with the law. If the application of the assessee has some issue same should be indicated to the assessee. In these facts, the issue on merits is not adjudicated as assessee has opted for settlement of dispute under the VSV Scheme. 07. In the result, the appeal filed by the assessee is allowed as indicated above. Order pronounced in the open court on 31.05. 2024. Sd/- Sd/- (SUNIL KUMAR SINGH) (PRAS HANT MAHAR ISHI) (JUDIC IAL MEM BER) (ACC OUNTANT MEMB ER) Mumbai, Dated: 31.05.2024 Sudip Sarkar, Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, True Copy// Page | 7 ITA No.4349/Mum/2023 Multi Dimensional Asset & Wealth Creation LLP, A.Y. 11-12 Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Mumbai