GANESH SHIVA THAKUR, Mumbai V. ITO 29 (1)(4), Mumbai

ITA 4888/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8285 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 23-07-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Keywords: Competent authority; Condonation of delay
• Section: 260A; 201; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (VIRTUAL COURT) SMC BENCH, MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER ITA NO. 4888 /MUM/20 19 (A.Y: 2014 - 15) SHRI GANESH SHIVA THAKUR 40, PITRU CHHAYA, DREAMLAND JAI SHASTRI NAGAR, MULUND (W) MUMBAI - 400080 PAN: AABPT2955L V. INCOME TAX OFFICER 29(1 )(4) C - 10, PRATYAKSHKAR BHAVAN BANDRA KURLA COMPLEX BANDRA (E), MUMBAI 400051 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SMITA VERMA DATE OF HEARING : 05.08.2021 DATE OF PRONOUNCEMENT : 05.08.2021 O R D E R PER C.N. PRASAD (JM) 1. TH IS APPEAL IS FILED BY THE ASSESSEE AGAINST ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 39 , MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 22.03.2019 FOR THE A.Y. 201 4 - 15. 2. ASSESSEE THROUGH HIS AUTHORIZED REPRESENTATIVE FILED A LETTER BY WAY OF E - MAIL DATED 04 TH AUGUST, 2021 AND SUBMITTED AS UNDER: - 2 ITA NO. 4888/MUM/2019 (A.Y: 2014 - 15) SHRI GANESH SHIVA THAKUR SUB: HEARING OF APPEAL IN THE CASE OF GANESH S. THAKUR FOR A.Y. 2014 - 15 ITA NO. 4888 /M/19 THE ABOVE REFERRED APPEAL HAS BEEN POSTED FOR HEARING BEFORE THE HONBLE TRIBUNAL FOR THE 5 TH OF AUGUST, 2021 IN RESPECT OF THIS APPEAL, THE APPELLANT HAS MADE AN APPL ICATION UNDER VIVAD SE VISHWAS SCHEM E. HOWEVER, THERE WAS AN APPARENT MISTAKE IN THE FORM NO. 3 ISSUED BY THE DEPARTMENT AND HENCE A RECTIFICATION APPLICATION HAS BEEN MADE TO THE LEARNED PR. C.I.T. AND THE SAME IS STILL PENDING FOR ACTION AT HIS END. A COPY OF FORM NO.3 AND RECTIFICATION APPLICATION ALONG WITH A COPY OF THE REMINDER LETTER ARE ATTACHED HEREWITH AND THE SAME MAY KINDLY BE CONSIDERED AND DI RECTED TO BE TAKEN ON RECORD. IN VIEW OF THE ABOVE, IT IS REQUESTED THAT THE HEARING FIXED MAY KI NDLY BE ADJOURNMENT. 3. ON A PERUSAL OF THE ABOVE LETTER IT IS NOTICED THAT ASSESSEE HAS ALREADY FILED DECLARATION AND UNDERTAKING IN FORM - 1 UNDER VIVAD SE VISHWAS SCHEME AND RECEIVED FORM - 3 ISSUED BY THE REVENUE. IT IS OBSERVED THAT THERE WAS AN APPARENT M ISTAKE IN THE FORM NO. 3 ISSUED BY THE DEPARTMENT AND ASSESSEE FILED A RECTIFICATION PETITION AND THE SAME IS PENDING BEFORE PR.CIT. THEREFORE, SINCE ASSESSEE IS CONTEMPLATING TO SETTLE LITIGATION UNDER VIVAAD SE VISHWAS SCHEME NO PURPOSE WOULD SERVE KEEP ING THE APPEAL 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: - 3 ITA NO. 4888/MUM/2019 (A.Y: 2014 - 15) SHRI GANESH SHIVA THAKUR 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' F OR BREVITY) IN I.T.A.NO.2576/CHNY/2017 FOR THE ASSESSMENT YEAR 2011 - 12. THE APPEAL IS ADMITTED ON THE FOLLOWING SUBSTANTIAL QUESTIONS OF LAW: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE INCOME TAX APPELLATE TRIBUNAL WAS PERVERSE IN NOT CONS IDERING ALL THE GROUNDS RAISED IN CROSS OBJECTION, VIZ. (1) CLAIM OF EXEMPTION IN RESPECT OF SALE OF AGRICULTURAL 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 LAW 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, LEA RNED COUNSEL APPEARING FOR THE APPELLANT/ASSESSEE AND MR.T.R.SENTHIL KUMAR, LEARNED SENIOR STANDING COUNSEL AND M/S.K.G.USHA RANI, LEARNED COUNSEL FOR THE RESPONDENT/REVENUE. 3. THE LEARNED COUNSEL FOR THE APPELLANT / ASSESSEE, ON INSTRUCTIONS, SUBMITTED T HAT 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 APPLICATION / DECLARATION IN FORM NO.I. 4. IT MAY NOT BE NECESSARY FOR THIS COURT T O 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 MA TTERS 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. 4 ITA NO. 4888/MUM/2019 (A.Y: 2014 - 15) SHRI GANESH SHIVA THAKUR 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 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 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 CASE, 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 ONE - HALF OF THE AMOUNT IN THE TABLE STIPULATED IN SECTION 3 CALCULATED ON SUCH ISSUE, IN SUCH A MANNER AS MAY BE PRESCRIBE D. 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 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 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 REGISTRY SHAL L 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 MISCELLANEOUS PETITION FOR RESTORATION, THE REGISTRY SHALL PLACE SUCH PETIT ION BEFORE THE DIVISION BENCH FOR ORDERS. 5 ITA NO. 4888/MUM/2019 (A.Y: 2014 - 15) SHRI GANESH SHIVA THAKUR 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 SHALL 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, TH IS APPEAL IS DISPOSED OFF ACCORDINGLY, WITH LIBERTY TO THE ASSESSEE 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 DEPAR TMENT NOT ACCEPTING THE APPLICATION MADE BY THE ASSESSEE UNDER THE SAID SCHEME, THE APPEAL OF THE ASSESSEE SHALL BE RECALLED BY THE TRIBUNAL AND RESTORED FOR ADJUDICATION ON MERITS. IT IS FURTHER MADE CLEAR THAT IF THE ASSESSEE 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 APPLICATION 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 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 6 ITA NO. 4888/MUM/2019 (A.Y: 2014 - 15) SHRI GANESH SHIVA THAKUR DATED 16.10.2020. WITH THESE OBSERVATIONS THE APPEAL IS DISPOSED OFF ACCORDINGLY . 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED AS OBSERVED ABOVE. ORDER PRONOUNCED IN THE VIRTUAL COURT ON 05.08.2021 . SD/ - (C.N. PRASAD) JUDICIAL MEMBER MUMBAI / DATED 05/08 / 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