Dy. Commissioner of Income Tax , Circle-1, Nellore V. Gopisetty Satyanarayana, Nellore

ITA 652/Hyd/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7683 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB-B
• Next Hearing Date: 30-06-2021
• Assessment Year: 2010-2011
• Appeal Filed On: 02-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K A SAI PRASAD
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD (THROUGH VIRTUAL CONFERENCE) BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO. 652 /H/20 1 9 A SSESSMENT Y EAR : 20 1 0 - 11 DY. COMMISSIONER OF INCOME - TAX, CIRCLE 1, NELLORE VS. GOPISETTY SATYANARAYANA, NELLORE. PAN AIIPG 4150 B (APPELLANT) (RESPONDENT) REVENUE BY: SHRI ROHIT MUJUMDAR ASSESSEE BY: SHRI K.A. SAIPRASAD DATE OF HEARING: 30 /0 6 /2021 DATE OF PRONOUNCEMENT: 27 / 0 8 /2021 O R D E R PER L.P. SAHU, A.M. : T H IS APPEAL FILED BY THE REVENUE FOR AY 20 12 - 1 3 I S DIRECTED AGAINST CIT(A), TIRUPATI S ORDER DATED 2 8 / 0 2 /201 9 INVOLVING PROCEEDINGS U/S 271(1 ) (C) OF THE INCOME TAX ACT, 1961 ; IN SHORT THE ACT. 2. ON PERUSAL OF RECORD, WE FIND THAT WE HAVE DISPOSED OFF THE QUANTUM APPEAL FILED BY THE ASSESSEE VIDE ITA NO. 441/HYD/2019, ORDER DATED 24/02/2021 BY DISMISSING THE APPEAL WHEN THE ASSESSEE OPTED TO AVAIL VSVS SCHEME. ITA NO. 652 / H YD/ 20 1 9 GOPISETTY SATYANARAYANA, NELLORE . : - 2 - : THEREFORE, WHEN THE QUANTUM APPEAL ITS ELF IS NOT EXISTED, LEVYING PENALTY U/S 271(1)(C) ON SUCH NON EXISTENT APPEAL, DOES NOT HAVE LEGS TO WITHSTAND IN THE EYE OF LAW. IN THIS REGARD WE REFER TO THE FREQUENTLY ASKED QUESTIONS (FAQS) ISSUED BY THE CBDT WITH REGARD TO VSVS SCHEME, WHEREIN QUESTI ONS NOS 8 & 34 AND ITS ANSWERS ARE EXTRACTED BELOW FOR THE SAKE OF CLARITY: QUESTION NO. 8 . IMAGINE A CASE WHERE AN APPELLANT DESIRES TO SETTLE CONCEALMENT PENALTY APPEAL PENDING BEFORE CIT(A), WHILE CONTINUING TO LITIGATE QUANTUM APPEAL THAT HAS TRAVELLE D TO HIGHER APPELLATE FORUM. CONSIDERING THESE ARE TWO INDEPENDENT AND DIFFERENT APPEALS, WHETHER APPELLANT CAN SETTLE ONE TO EXCLUSION OF OTHERS? IF YES, WHETHER SETTLEMENT OF PENALTY APPEAL WILL HAVE ANY IMPACT ON QUANTUM APPEAL? ANSWER: IF BOTH QUANTU M APPEAL COVERING DISPUTED TAX AND APPEAL AGAINST PENALTY LEVIED ON SUCH DISPUTED TAX FOR AN ASSESSMENT YEAR ARE PENDING, THE DECLARANT IS REQUIRED TO FILE A DECLARATION FORM GIVING DETAILS OF BOTH DISPUTED TAX APPEAL AND PENALTY APPEAL. HOWEVER, HE WOULD BE REQUIRED TO PAY RELEVANT PERCENTAGE OF DISPUTED TAX ONLY, FURTHER, IT WOULD NOT BE POSSIBLE FOR THE APPELLANT TO APPLY FOR SETTLEMENT OF PENALTY APPEAL ONLY WHEN THE APPEAL ON DISPUTED TAX RELATED TO SUCH PENALTY IS STILL PENDING. QUESTION NO. 34 . APPEALS AGAINS T : ASSESSMENT ORDER AND AGAINST PENALLY ORDER ARE FILED SEPARATELY ON SAME ISSUE. HENCE THERE ARE SEPARATE APPEALS FOR BOTH. IN SUCH A CASE HOW DISPUTED TAX (0 BE CALCULATED? ANSWER: PLEASE SEE QUESTION NO. 8. FURTHER, IT I S CLARIFIED THAT IF THE APPELLANT HAS BOTH APPEAL AGAINST ASSESSMENT ORDER AND APPEAL AGAINST PENALTY RELATING TO SAME ASSESSMENT PENDING FOR THE SAME ASSESSMENT YEAR, AND HE WISHES TO SETTLE THE APPEAL AGAINST ITA NO. 652 / H YD/ 20 1 9 GOPISETTY SATYANARAYANA, NELLORE . : - 3 - : ASSESSMENT ORDER (WITH PENALTY APPEAL AUTOMAT ICALLY COVERED), HE IS REQUIRED TO GIVE DETAILS OF BOTH APPEALS IN ONE DECLARATION FORM FOR THAT YEAR. HOWEVER, IN THE ANNEXURE HE IS REQUIRED TO FILL ONLY THE SCHEDULE RELATING TO DISPUTED TAX. 2.1 IN VIEW OF THE ABOVE OBSERVATIONS, THE APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A), WHO DELETED THE PENALTY LEVIED BY THE AO U/S 271(1)(C) AGAINST THE QUANTUM ADDITIONS MADE, WHICH WERE DISPOSED OFF BY THE ITAT UNDER THE VSVS SCHEME CITED SUPRA, BECOMES INFRUCTUOUS. WE MAKE IT CLEAR THAT IT S HALL BE VERY MUCH OPEN FOR THE REVENUE TO FILE FOR REVIVAL OF TH IS CASE, IF THE SETTLEMENT BENEFIT UNDER THE SCHEME IS DENIED TO THE ASSESSEE F OR TECHNICAL REASONS IN QUANTUM ADDITIONS. 3 . IN THE RESULT, REVENUE S APPEAL IS DISMISSED AS INFRUCTUOUS IN ABOVE TERMS. PRONOUNCED IN THE OPEN COURT ON 27 TH AUGUST , 2021 . SD/ - SD/ - (S . S . GODARA) (L . P . SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDE RABAD, DATED : 27 TH A UGUST , 20 2 1 . KV ITA NO. 652 / H YD/ 20 1 9 GOPISETTY SATYANARAYANA, NELLORE . : - 4 - : C OPY TO : 1 DCIT, CIRCLE 1, D.NO. 24 - 2 - 438, 1 ST FLOOR, UPSTAIR OF SYNDICATE BANK, GNT ROAD, DARGAMITTA, NELLORE 2 GOPISETTY SATYANARAYANA, D.NO. 16 - 10 - 3, MUTHUKAR ROAD, HARANATHAPURAM, NELLORE 3 CIT(A), TIRUPATI 4 PR. CIT , TIRUPATI 5 ITAT, DR, HYDERABAD 6 GUARD FILE.