INCOME TAX OFFICER 11(1)(1), MUMBAI V. M/S.RATHI RETAILS INDIA PRIVATE LIMITED , MUMBAI

ITA 5324/MUM/2017

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1387 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 14-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY SETHI
• Keywords: Question of law; Competent authority; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (V I RTUAL COURT) , D BENCH MUMBAI BEFORE SHRI JUSTICE P P BHATT, PRESIDENT & SHRI M.BALAGANESH, AM ITA NO. 5324 /MUM/ 20 17 ( ASSESSMENT YEAR : 2009 - 10 ) THE INCOME TAX OFFICER 11(1)(1), ROOM NO.201 , AAYAKAR BHAVAN M.K. MARG, MUMBAI 400 020 VS. M/S. RATHI RETAILS INDIA PVT. LTD., 302, CLIFF TOWER, LOKHANDWALA COMPLEX, 3 RD CROSS LANE, ANDHERI (WEST) MUMBAI 400 053 PAN/GIR NO. AADCR7973B (APPELLANT ) .. (RESPONDENT ) REVENUE BY SHRI SANJAY SE THI ASSESSEE BY NONE DATE OF HEARING 09 / 02 /202 1 DATE OF PRONOUNCEMENT 09 / 02 /202 1 / O R D E R PER M. BALAGANESH (A.M) : THIS APPEAL IN ITA NO. 5324/MUM/2017 FOR A.Y. 2009 - 10 ARISES OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOM E TAX (APPEALS) - 18, MUMBAI IN APPEAL NO. CIT(A) - 18/IT - 318/ITO - 11(1)(1)/14 - 15 DATED 11/04/2017 (LD. CIT(A) IN SHORT) AGAINST THE ORDER OF ASSESSMENT PASSED U/S.143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO ITA NO . 5324/MUM/2017 M/S. RATHI RETAILS INDIA P. LTD 2 AS ACT) DATED 23/03/2015 BY THE LD. INCOME TAX OFFICER 11(1)(1), MUMBAI (HEREINAFTER REFERRED TO AS LD. AO). NONE APPEARED ON BEHALF OF THE ASSESSEE 2. WE FIND THAT LD. AR FILED A LETTER DATED 05/02/2021 MENTIONING THAT ASSESSEE HAD PREFERRED TO OPT FOR DIRECT TAX VIVAD SE VIS HWAS SCHEME - 2020 AND FORM NO.3 ISSUED BY THE COMPETENT AUTHORITY IS PLACED ON RECORD. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. SINCE, THE ASSESSEE HAD ALREADY FILED AN APPLICATION UNDER DIRECT TAX VIVAD SE VISWAS SCHEME ACT 2020 , THERE IS NO NEED TO KEEP THE APPEAL PENDING BEFORE US IN VIEW OF THE DECISION OF HON'BLE MADRAS HIGH COURT IN THE CASE OF NANNUSAMY MOHAN (HUF) VS. ACIT IN T.C.A. NO.372 OF 2020 DATED 16.10.2020, WHEREIN THE HONBLE HIGH COURT AFTER CONSI DERING THE INTENTION OF THE ASSESSEE TO AVAIL THE BENEFIT OF VIVAD SE VISHWAS SCHEME - 2020 (VSV SCHEME), HAD DISMISSED THE APPEAL BY OBS ERVING IN PARA 7 TO 9 AS UNDER: - 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 SHALL ENTERTAIN THE PRAYER WITHOUT INSISTING UPON ANY APPLICATION TO BE F ILED 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 PETITION BEFORE THE DIVISION BENCH FOR ORDERS. 8. IN THE LIGHT OF THE ABOV E, 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 6 (6) WEEKS FROM THE DATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FORM. ITA NO . 5324/MUM/2017 M/S. RATHI RETAILS INDIA P. LTD 3 9. WITH THIS DECLARATION, THE TAX CASE APPEAL STANDS DISPOSED OF WITH THE AFOREMENTIONED LIBERTY AND CONSEQUENTLY THE SUBSTANTIAL QUESTION OF LAW ARE LEFT UPON. NO COSTS. 4. IN THE LIGHT OF THE VIEW TAKEN BY HONBLE MADRAS HIGH COURT CITED (SUPRA), WE ALSO GIVE LIBERTY TO THE ASSESSEE TO GET THE APPEAL RESTORED IN THE EVENT THAT THE ASSESSEE DOES NOT SUCCEED ON THE DECLARATION FILED BY THE ASSESSEE UNDER DIRECT TA X VIVAD SE VISWAS SCHEME - 2020. IN OTHER WORDS IF THE ASSESSEES DECLARATION FILED IS NOT ACCEPTED BY THE REVENUE FOR ANY REASON WHATSOEVER, THE ASSESSEE CAN MAKE A PRAYER BEFORE THE BENCH FOR RECALLING OF THE ORDER BY FILING A MISCELLANEOUS APPLICATION F OR RESTORATION OF APPEAL. THE REGISTRY WILL PLACE SUCH PETITION BEFORE THE BENCH CONCERNED. 5. IN VIEW OF THE AFORESAID OBSERVATIONS, WE DISMISS TH IS APPEAL WITH A LIBERTY TO GET IT RECALLED IN THE EVENTUALITY OF ASSESSEES DECLARATION NOT GETTING ACCEPTED BY THE REVENUE. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 09/02/2021. SD/ - ( JUSTICE P P BHATT ) SD/ - (M.BALAGANESH) PRESIDENT ACCOUNTANT MEMBER MUMBAI ; DATED 09 / 02 / 2021 KARUNA , SR.PS ITA NO . 5324/MUM/2017 M/S. RATHI RETAILS INDIA P. LTD 4 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//