SHRI AJAY RAYCHAND NENSEE, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX-17(1), MUMBAI

ITA 5468/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8181 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 22-08-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Keywords: Competent authority; Condonation of delay
• Section: 6; 260A; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (VIRTUAL COURT) SMC BENCH , MUMBAI BEFORE SHRI C.N. PRASAD , HONBLE JUDICIAL MEMBER ITA NO . 5468 /MUM/20 19 ( A.Y: 2015 - 16) SHRI AJAY RAYCHAND NENSEE MAHARASHTRA TYPEWRITER COMPANY 20 - A NAGINDAS MASTER ROAD FORT, MUMBAI - 400023 PAN: AAAPN3964A V. ACIT 17(1) 1 ST FLOOR, AAYAKAR BHAVAN M.K. ROAD , MUMBAI - 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SMITA VERMA DATE OF HEARING : 28 .07 .2021 DATE OF PRONOUNCEMENT : 28 .07 .2021 O R D E R PER C.N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST ORDER OF THE LEARNED COMMISS IONER OF INCOME TAX (APPEALS) 28 , MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 14.06.2019 FOR THE A.Y. 2015 - 16. 2. ASSESSEE THROUGH HIS AUTHORIZED REPRESENTATIVE FILED LETTER DATED 27.07.2021 AND SUBMITTED AS UNDER: - RE F: MR. AJAY RAYCHAND NENSEE. PAN - AAAPN3964A. ASSESSMENT YEAR - 2015 - 16. APPEAL NO. - 5468/M/19. DATE OF HEARING - .28/07/2021. 2 ITA NO. 5468/MUM/2019 (A.Y: 2015 - 16) SHRI AJAY RAYCHAND NENSEE SUB,: REQUEST FOR ADJOURNMENT RESPECTED SIR/MADAM, UNDER INSTRUCTIONS AND ON BEHALF OF MY CLIENT MR. AJAY RAYCHAND NENSEE, I HAVE TO STATE AND SUBMIT AS UNDER: WITH REFERENCE TO THE AFOREMENTIONED SUBJECT MATTER, I HAVE TO STATE THAT MY CLIENT HAD FILED D ECLARATION UNDER THE INCOME DECLA RATION SCHEME, 2016 AND HAS ALSO MADE THE BALANCE PAYMENT OF TAX AS PER EXTENSION PROVIDED BY CBDT NOTIF ICATION NO . 103/2019 - INCOME TAX. MY CLIENT IS NOW AWAITING THE RECEIPT OF CERTIFICATE IN FORM 4 FROM THE JURISDICTIONAL PRINCIPAL COMMISSIONER OF INCOME TAX. THEREFORE, I HEREBY REQUEST YOUR GOOD SELF TO KINDLY GRANT AN 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 ASSESSEE HAS ALSO MADE THE PAYMENT OF TAX AS PER CBDT NOTIFICATION NO. 103/2019 - INCOME TAX. THEREFORE, SINCE ASSESSEE IS CONTEMPLATING TO SETTLE LITIGATION UNDER VIVAAD SE VISHWAS SCHEME NO PURPOSE WOULD SERVE KEEPING THE APPEAL PENDING. 4. THE HON'BLE MADRAS HIGH COURT IN TH E 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 FOLLOWING 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 G ROUNDS RAISED IN CROSS OBJECTION, VIZ. (1) CLAIM OF EXEMPTION IN RESPECT OF SALE OF AGRICULTURAL LAND (2) CLAIM OF 3 ITA NO. 5468/MUM/2019 (A.Y: 2015 - 16) SHRI AJAY RAYCHAND NENSEE 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 T HE 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, LEARNED COUNSEL APPE ARING 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 THAT 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 TO DECIDE THE SUBS TANTIAL 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 T HEREWITH 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, TH E 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, N OTWITHSTANDING 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 TAX AUTHORITY ON ANY ISSUE BEFORE THE APPELLATE FORUM, THE 4 ITA NO. 5468/MUM/2019 (A.Y: 2015 - 16) SHRI AJAY RAYCHAND NENSEE 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 MA Y 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 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 OFFE NCE 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 APPE AL 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 S HALL 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 PE TITION 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 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, THIS 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 CONTEMP LATED 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 5 ITA NO. 5468/MUM/2019 (A.Y: 2015 - 16) SHRI AJAY RAYCHAND NENSEE OF THE ASSESSEE SHALL BE RECALLED BY THE TRIBUNAL AND RESTORED FOR ADJUDICATIO N 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 C ONDONATION 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.NAN NUSAMY MOHAN (HUF) V. ACIT IN T.C.A. NO. 372 OF 2020 DATED 16.10.2020. WITH THESE OBSERVATIONS THIS APPEAL IS DISMISSED AS WITHDRAWN. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED AS OBSERVED ABOVE. ORDER PRONO UNCED IN THE VIRTUAL COURT ON 28 .07.2021 . SD/ - (C.N. PRASAD) JUDICIAL MEMBER MUMBAI / DATED 28 /07/2021 GIRIDHAR, SR.PS 6 ITA NO. 5468/MUM/2019 (A.Y: 2015 - 16) SHRI AJAY RAYCHAND NENSEE 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 DATE INITIALS 1. DRAFT DICTATED ON: 28 .07.2021 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: SR. PS/PS 6. ORDER PRONOUNCED ON: SR. PS/PS 7 DICTATION PAD IS ENCLOSED 8. DATE ON WHICH THE FINAL ORDER IS UPLOAD ON THE WEBSITE OF ITAT 9. FILE SENT TO THE BENCH CLERK: 10. DATE ON WHICH FILE GOES TO THE HEAD CLERK: 11. DATE ON WHICH FILE GOES TO AR 12 DATE OF DISPATCH OF ORDER: