ZENAL JAINAM DEVELOPERS, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX, RANGE-25(3), MUMBAI

ITA 4358/MUM/2017

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0676 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 13-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA
• Keywords: Competent authority

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUM BAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI C. N. PRASAD, JM ITA NO. 4358/MUM/2017 (ASSESSMENT YEAR: 2012-13) ZENAL JAINAM DEVELOPERS SHOP NO.6, SAURABH APARTMENTS, SHAHAJI RAJE ROAD, NEAR BHUTA, VILE PARLE (E), MUMBAI-400 057 VS. ASST. CIT, RANGE 25(3) C-10, 6 TH FLOOR, PRATYAKSHKAR BHAVAN, BKC, BANDRA, MUMBAI-400 050 PAN/GIR NO. AAAAD 2573 N ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : NONE RESPONDENT BY : SHRI T. S. KHALSA DATE OF HEARING : 15.02.2021 DATE OF PRONOUNCEMENT : 15.02.2021 O R D E R PER SHAMIM YAHYA, A. M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LEARNED CIT(A)- 37, MUMBAI (IN SHORT THE CIT(A)) DATED 22.03.2017, PERTAINING TO THE RELEVANT ASSESSMENT YEAR 2012-13. 2. AT THE OUTSET, IT IS NOTED THAT THE ASSESSEE HAS OPTED FOR SOLUTION OF DISPUTE UNDER THE VIVAAD SE VISHWAS SCHEME. 3. WE NOTE THAT IN A SIMILAR SITUATION, HON'BLE MAD RAS HIGH COURT HAS IN AN APPEAL IN THE CASE OF M/S. NANNUSAMY MOHAN (HUF) VS ACIT V IDE ORDER DATED 16.10.2020 HELD AS UNDER :- 3. THE LEARNED COUNSEL FOR THE APPELLANT / ASSESSE E, ON INSTRUCTIONS, SUBMITTED THAT THE APPELLANT / ASSESSEE INTENDS TO AVAIL THE BENEFIT OF VIVAD SE VISHWAS SCHEME (VVS SCHEME FOR BREVITY) AND IN TH IS REGARD, THE ASSESSEE IS TAKING STEPS TO FILE THE APPLICATION / DECLARATION IN FORM NO. I. 2 ITA NO. 4358/MUM/2017 M/S. ZENAL JAINAM DEVELOPERS VS. ASST. CIT 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 ENACTED THE D IRECT TAX VIVAD SE VISHWAS ACT, 2020 (ACT 3 OF 2020) TO PROVIDE FOR RE SOLUTION OF DISPUTED TAX AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL T HERETO. THE ACT OF THE PARLIAMENT RECEIVED THE ASSENT OF THE PRESIDENT ON 17 TH MARCH 2020 AND PUBLISHED IN THE GAZETTE OF INDIA ON 17 TH 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 DI FFERENT LEVELS EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNA L 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 ACCORD ANCE WITH THE PROVISIONS OF SECTION 4 IN RESPECT OF TAX ARREARS, THEN, NOTWITHS TANDING ANYTHING 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 CA SE, 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 PA YABLE SHALL BE ONE-HALF OF THE AMOUNT IN THE TABLE STIPULATED IN SECTION 3 CAL CULATED ON SUCH ISSUE, IN SUCH A MANNER AS MAY BE PRESCRIBED. THE SECOND PROV ISO DEALS WITH THE CASES, WHERE THE MATTER IS BEFORE THE COMMISSIONER (APPEAL S) OR BEFORE THE DISPUTE RESOLUTION PANEL. THE THIRD PROVISO DEALS WITH CASE S, WHERE THE ISSUE IS PENDING BEFORE THE INCOME TAX APPELLATE TRIBUNAL. T HE 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 INITIATION OF PROCEEDINGS IN RESPECT OF OFFENC E AND IMPOSITION OF PENALTY IN CERTAIN CASES. SECTION 9 OF THE ACT DEALS WITH C ASES, 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 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 ENTERTAIN 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, THE REGISTR Y SHALL PLACE SUCH PETITION BEFORE THE DIVISION BENCH FOR ORDERS. 8. IN THE LIGHT OF THE ABOVE, WE DIRECT THE APPELLA NT / ASSESSEE TO FILE THE FORM NO.I ON OR BEFORE 20.11.2020 AND THE COMPETENT AUTHORITY SHALL PROCESS 3 ITA NO. 4358/MUM/2017 M/S. ZENAL JAINAM DEVELOPERS VS. ASST. CIT THE APPLICATION / DECLARATION IN ACCORDANCE WITH TH E ACT AND PASS APPROPRIATE ORDERS AS EXPEDITIOUSLY AS POSSIBLE PREFERABLY WITH IN A PERIOD OF SIX (6) WEEKS FROM THE DATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FORM. 4. ACCORDINGLY, RESPECTFULLY FOLLOWING THE ABOVE AN D NOTING THE FACT THAT THE ASSESSEE IS OPTING FOR RESOLUTION OF DISPUTE UNDER VSWS SCHEME IN THE PRESENT CASE, WE TREAT THIS APPEAL BEING DISPOSED OFF AS WITHDRAW N. 5. THE ASSESSEE IS GIVEN LIBERTY FOR RESTORATION OF APPEAL IN ACCORDANCE WITH PARAGRAPH 7 OF THE HON'BLE HIGH COURT ORDER AS ABOV E. THE COUNSEL PRESENT FAIRLY AGREED TO THE ABOVE PROPOSITION 6. IN THE RESULT, THIS APPEAL BY THE ASSESSEE IS DI SPOSED OF BY TREATING THE SAME AS WITHDRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON 15.02.2021. SD/- SD/- (C. N. PRASAD) JUDICIAL MEMBER (SHAMIM YAHYA) ACCOUNTANT MEMBER MUMBAI, DATE : 15 TH FEBRUARY, 2021 ROSHANI, SR. PS COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, SMC BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI