MEENA RAMESH JAIN, MUMBAI V. ITO 19 (2)(3), MUMBAI

ITA 6616/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6817 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 22-10-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJAY J SETHI
• Keywords: Competent authority; Condonation of delay
• Section: 260A; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (VIRTUAL COURT) SMC BENCH, MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER ITA NO. 6615 /MUM/20 19 ( 2014 - 15 ) MEENA VIJAY JAIN ROOM NO. 38, 2ND FLOOR MULJI THAKERSY BUILDING 52/A NANUBHAI DESAI ROAD C.P. TANK, MUMBAI - 400004 PAN: ACWPJ1392E V. INCOME TAX OFFICER 19(2)(3) 2ND FLOOR , MATRU MANDIR TARDEV ROAD MUMBAI 400 007 (APPELLANT) (RESPONDENT) ITA NOS. 6616/MUM/2019 (2014 - 15) MEENA RAMESH JAIN 146, C.P. TANK ROAD MUMBAI 400004 PAN: AACPJ1417C V. INCOME TAX OFFICER 19(2)(3) 2ND FLOOR MATRU MANDIR, TARDEV ROAD MUMBAI 400 007 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJKUMAR SINGH DEPARTMENT BY : SHRI SANJAY J. SETHI DATE OF HEARING : 13.07.2021 DATE OF PRONOUNCEMENT : 13.07.2021 2 ITA NO. 6615 & 6616/MUM/2019 (2014 - 15) MEENA VIJAY JAIN & MEENA RAMESH JAIN O R D E R PER C.N. PRASAD (JM) 1. TH ESE APPEAL S ARE FILED BY DIFFERENT ASSESSEES OF SAME FAMILY AGAINST ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 30 , MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 15.07.2019 FOR THE A.Y. 201 4 - 15. 2. AT THE TIME OF HEARING THE APPEALS VIRTUALLY LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE OPTED FOR VIVAD SE VISHWAS SCHEME AND FILED DECLARATION AND UNDERTAKING IN FORM - 1 TO SETTLE THE LITIGATION . LD.COUNSEL FOR THE ASSESSEE FILED LETTER DATED 05.07.2021 AND SUBMITTED AS UNDER: - ITA.NO. 6615/MUM/2019 REG: MEENA VIJAY JAIN ITA.NO.6615/MUM/2019 A.Y. 2014 - 15. SUB: - APPLICATION OF ADJOURNMENT OF HEARING/WITHDRAWALS OF APPEAL WITH REFERENCE TO ABOVE MENTIONED APPEAL FILED FOR ABOVE ASSESSMENT YEAR BY THE ABOVE NAMED ASSESSEE APPELLANT WHICH HAS BEEN FIXED FOR HEARING BEFORE YOUR HONOUR ON 13/07/2021, WE, UNDER INSTRUCTION OF ASSESSEE APPELLANT HAVE TO STATE AS UNDER - PURSUANT TO APPLICATION FILED IN FORM NO.L & FORM NO.2 UNDER THE DIRECT TAX VIVAD SE VISHWAS ACT, 2020 BY THE APPELLANT TO SETTLE THE DISPUTE INV OLVED IN THE ABOVE APPEAL, THE L D. PR. C.I.T., MUMBAI - 19 HAS ISSUED CERTIFIC ATE DATED 29/01/2021 IN FORM NO.3 UNDER THE SAID ACT DETERMINING THE DISPUTED TAX PAY ABLE/REFUNDABLE BY THE ASSESSE E (COPY OF FORM NO.3 ENCLOSED). HOWEVER AGAINST THE AMOUNT CORRECTLY PAYABLE UNDER THE SAID ACT BY THE APPELLANT BEING 100% OF DISPUTED TAX, SAME HAS WRONGL Y BEEN 3 ITA NO. 6615 & 6616/MUM/2019 (2014 - 15) MEENA VIJAY JAIN & MEENA RAMESH JAIN DETERMINED @125% BY THE L D, PR. CLT, ERRONEOUSLY TREATING THE CASE OF ASSESSEE AS SEARCH CASE IN THE FORM NO. 3 ISSUED BY HIM ON 29/01/2021. THE ABOVE MENTIONED INCORRECT QUANTIFICATION OF DISPUTED TAX PAYABLE HAS BEEN TAKEN UP BY TH E ASSESSEE AND AFTER CLARIFICATION ISSUED BY C.B.D.T. IN THIS REGARD, NOW ISSUE OF AMENDED FORM NO.3 IS IN PROCESS IN THE OFFICE OF CONCERNED PR. C.I.T. AND MAY BE RECEIVED BY ASSESSEE AT ANY TIME. FURTHER EXTENDED LAST DATE FIXED UNDER THE SAID ACT FOR PAYMENT OF DISPUTED TAX INVOLVED IN THE ABOVE APPEAL IS 31 ST AUGUST 2021, AND APPLICATION MADE BY ASSESSEE APPELLANT IN THIS REGARD IS ALSO SUBJECT TO ISSUE OF AMENDED FORM NO.3 & FINAL CERTIFICATE IN FORM NO.5 BY CONCERNED PRINCIPAL COMMISSIONER OF INCOME TAX FOR ULTIMATE SETTLEMENT OF THE MATTER. IN VIEW OF THE ABOVE WE HUMBLY REQUEST THAT HEARING FIXED IN THE ABOVE APPEAL ON 13/07/ 2021 EITHER MAY BE POSTPONED TO ANY DATE AFTER 31ST AUGUST, 2021 OR APPEAL MAY BE DISMISSED IN LIMINE WITH AN OPTION TO RECA LL THE SAME IF FOR ANY UNFORESEEN REASON APPLICATION MADE BY ASSESSEE APPELLANT UNDER THE ABOVE MENTIONED ACT DOES NOT ATTAIN FINALITY. DULY EXECUTED LETTER OF AUTHORITY BY THE ASSESSEE APPELLANT IN OUR FAVOUR BEARING STAMP DUTY OF RS.500/ - IS ENCLOSED HE REWITH. KINDLY DO THE NEEDFUL AS REQUESTED ABOVE AND OBLIGE. ITA.NO. 6616/MUM/2019 REG: MEENA RAMESH JAIN ITA.NO.6616/MUM/2019 A.Y. 2014 - 15. SUB: - APPLICATION OF ADJOURNMENT OF HEARING/WITHDRAWALS OF APPEAL WITH REFERENCE TO ABOVE MENTIONED APPEAL FILED FOR ABOVE ASSESSMENT YEAR BY THE ABOVE NAMED ASSESSEE APPELLANT WHICH HAS BEEN FIXED FOR HEARING BEFORE YOUR HONOUR ON 13/07/2021, WE, UNDER INSTRUCTION OF ASSESSEE APPELLANT HAVE TO STATE AS UNDER - PURSUANT TO APPLICATION FILED IN FORM NO.L & FORM N O.2 UNDER THE DIRECT TAX VIVAD SE VISHWAS ACT, 2020 BY THE APPELLANT TO SETTLE THE DISPUTE INV OLVED IN THE ABOVE APPEAL, THE L D. PR. C.I.T., MUMBAI - 19 HAS ISSUED CERTIFICATE DATED 30 /01/2021 IN FORM NO.3 UNDER THE SAID ACT DETERMINING THE DISPUTED TAX PAY ABLE/REFUNDABLE BY THE ASSESSE E (COPY OF FORM NO.3 ENCLOSED). HOWEVER AGAINST THE AMOUNT CORRECTLY PAYABLE UNDER THE SAID ACT BY THE APPELLANT BEING 100% OF DISPUTED TAX, SAME HAS WRONGL Y BEEN DETERMINED @125% BY THE L D, PR. CLT, ERRONEOUSLY TREATING THE C ASE 4 ITA NO. 6615 & 6616/MUM/2019 (2014 - 15) MEENA VIJAY JAIN & MEENA RAMESH JAIN OF ASSESSEE AS SEARCH CASE IN THE FORM NO. 3 ISSUED BY HIM ON 30 /01/2021. THE ABOVE MENTIONED INCORRECT QUANTIFICATION OF DISPUTED TAX PAYABLE HAS BEEN TAKEN UP BY THE ASSESSEE AND AFTER CLARIFICATION ISSUED BY C.B.D.T. IN THIS REGARD, NOW ISSUE OF AMENDED FORM NO.3 IS IN PROCESS IN THE OFFICE OF CONCERNED PR. C.I.T. AND MAY BE RECEIVED BY ASSESSEE AT ANY TIME. FURTHER EXTENDED LAST DATE FIXED UNDER THE SAID ACT FOR PAYMENT OF DISPUTED TAX INVOLVED IN THE ABOVE APPEAL IS 31 ST AUGUST 2021, AND APPLICA TION MADE BY ASSESSEE APPELLANT IN THIS REGARD IS ALSO SUBJECT TO ISSUE OF AMENDED FORM NO.3 & FINAL CERTIFICATE IN FORM NO.5 BY CONCERNED PRINCIPAL COMMISSIONER OF INCOME TAX FOR ULTIMATE SETTLEMENT OF THE MATTER. IN VIEW OF THE ABOVE WE HUMBLY REQUEST T HAT HEARING FIXED IN THE ABOVE APPEAL ON 13/07/ 2021 EITHER MAY BE POSTPONED TO ANY DATE AFTER 31 ST AUGUST, 2021 OR APPEAL MAY BE DISMISSED IN LIMINE WITH AN OPTION TO RECALL THE SAME IF FOR ANY UNFORESEEN REASON APPLICATION MADE BY ASSESSEE APPELLANT UNDER THE ABOVE MENTIONED ACT DOES NOT ATTAIN FINALITY. DULY EXECUTED LETTER OF AUTHORITY BY THE ASSESSEE APPELLANT IN OUR FAVOUR BEARING STAMP DUTY OF RS.500/ - IS ENCLOSED HEREWITH. KINDLY DO THE NEEDFUL AS REQUESTED ABOVE AND OBLIGE. 3. ON A PERUSAL OF THE ABOVE LETTER S FILED BY THE LD. COUNSEL FOR THE ASSESSEE IT IS NOTICED THAT ASSESSEE HAS ALREADY FILED DECLARATION AND UNDERTAKING IN FORM - 1 UNDER VIVAD SE VISHWAS SCHEME AND RECEIVED FORM - 3 FROM THE REVENUE ACCE PTING THE SAID DECLARATION . THEREFORE, SINCE ASSESSEES ARE CONTEMPLATING TO SETTLE LITIGATION UNDER VIVAAD SE VISHWAS SCHEME NO PURPOSE WOULD SERVE KEEPING THE APPEAL S PENDING. 5 ITA NO. 6615 & 6616/MUM/2019 (2014 - 15) MEENA VIJAY JAIN & MEENA RAMESH JAIN 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 16.10.202 0 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. WHETH ER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE INCOME TAX APPELLATE TRIBUNAL WAS PERVERSE IN NOT CONSIDERING 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 IM PROVEMENT IN PROVIDING MODERN KITCHEN IN THE FLATS PURCHASED? 2. WE HAVE HEARD MR.M.P.SENTHIL KUMAR, LEARNED 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 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 TAK ING STEPS TO FILE THE APPLICATION / DECLARATION IN FORM NO.I. 4. IT MAY NOT BE NECESSARY FOR THIS COURT TO 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 MATTERS CONNECTED THEREWITH 6 ITA NO. 6615 & 6616/MUM/2019 (2014 - 15) MEENA VIJAY JAIN & MEENA RAMESH JAIN 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, 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 FIR ST 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 ACCORDAN CE 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 TAX 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 PRESCRIBED. THE SECOND PROVISO DEALS WITH THE CASES, WHERE THE MATTER IS BEFORE THE COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RESOLUTION PANEL. THE THIRD PR OVISO 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 MENT IONED 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 202 0 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 SHALL 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 A SSESSEE BY FILING A 7 ITA NO. 6615 & 6616/MUM/2019 (2014 - 15) MEENA VIJAY JAIN & MEENA RAMESH JAIN MISCELLANEOUS PETITION FOR RESTORATION, THE REGISTRY SHALL PLACE SUCH PETITION 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 F ORM. 5. FOLLOWING THE ABOVE DECISION OF THE HON'BLE MADRAS HIGH COURT, TH ESE APPEAL S ARE 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 A S CONTEMPLATED 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 OF THE ASSESSEE SHALL BE RECALLED BY THE TRIBUNAL AND RESTORED FOR AD JUDICATION 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 APPLICAT ION 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 O F M/S. NANNUSAMY MOHAN (HUF) V. ACIT IN T.C.A. 8 ITA NO. 6615 & 6616/MUM/2019 (2014 - 15) MEENA VIJAY JAIN & MEENA RAMESH JAIN NO. 372 OF 2020 DATED 16.10.2020. WITH THESE OBSERVATIONS TH ESE APPEAL S ARE DISMISSED AS WITHDRAWN. 6. IN THE RESULT, APPEAL S OF THE ASSESSEE ARE DISMISSED AS OBSERVED ABOVE. ORDER PRONOUNCED IN THE VIRTUAL COURT ON 13.07.2021 . SD/ - (C.N. PRASAD) JUDICIAL MEMBER MUMBAI / DATED 13/07 / 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