AI Insights
The case involves an appeal by Kiran Bala, the legal heir of Ishar Singh, against the order of the CIT(A), NFAC, Delhi, which dismissed her appeal concerning an addition of Rs. 2,37,50,000 as unexplained investment under section 69 of the Income Tax Act. The dismissal was based on the grounds that the assessee had opted for the Vivad Se Vishwas Scheme, which the Tribunal found was incorrectly applied to the re-assessment proceedings under section 147 r/w 143(3) dated 28/03/2022, as the assessee had not opted for the scheme in relation to these specific proceedings. The Tribunal noted that the CIT(A) had not issued any notice to the assessee before dismissing the appeal, which denied her the opportunity to clarify the misunderstanding regarding the application of the Vivad Se Vishwas Scheme.
Appeal details
Counselvise Citation
[2023] 140 COUNSELVISE.COM (IT) 127608 (ITAT-CHANDIGARH)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
4 month(s) 26 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
04-04-2023
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Next Hearing Date
28-03-2023
Assessment Year
2013-2014
Appeal Filed On
09-11-2022
Judgement Text
आयकर अपील य अ धकरण,च डीगढ़ यायपीठ “ए” , च डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH “A”, CHANDIGARH ी आकाश द प जैन, उपा य एवं ी #व$म &संह यादव, लेखा सद+य BEFORE: SHRI. AAKASH DEEP JAIN, VP & SHRI. VIKRAM SINGH YADAV, AM ITA NO. 682/Chd/ 2022 Assessment Year : 2013-14 Kiran Bala (L/H Late Ishar Singh ) House No. 1512, Sector 34-D Chandigarh-160022 The ITO, DCIT CIR 1 (1) Chandigarh PAN NO: ACEPS9572P Appellant Respondent ! " Assessee by : Ms. Sunakshi, C.A # ! " Revenue by : Smt. Amanpreet Kaur, Sr. DR $ % ! & Date of Hearing : 29/03/2023 '()* ! & Date of Pronouncement : 05/04/2023 आदेश/Order PER VIKRAM SINGH YADAV, A.M. : This is an appeal filed by the assessee against the order of the Ld. CIT(A), NFAC, Delhi dated 15/09/2022 pertaining to Assessment Year 2013-14 , wherein the assessee has taken the following grounds of appeal: “1. That the Ld. CIT (A) has erred in law by treating the appeal filed by the appellant as dismissed on the ground that the appellant has opted for Vivad Se Vishwas Scheme, 2020. However, the Vivad Se Vishwas Scheme was opted by the appellant in case of the Original Assessment proceedings u/s 143(3) for which the order for dismissing the appeal was already passed by the CIT(A) vide DIN & Order No.: ITBA/NFAC/S/250/2021- 22/1035133234(1), Dated: 27/08/2021. The appellant did not approach for the Vivad Se Vishwas Scheme in case of Re-Assessment proceedings u/s 147. 2. That the Ld. Assessing Officer has erred in law and on facts, as notice u/s 148 has been issued on the basis of borrowed information and without making independent enquiries and without application of mind and in mechanical way. 3. The Ld. AO has erred in making an addition of Rs.2,37,50,000/- as unexplained investment u/s 69 of Income Tax Act despite the fact that the assessee's legal heir submitted the supporting documents substantiating the source of investment. 4. That the appellant seeks to leave to add, amend, alter, abandon or substitute any of the above grounds during the hearing of the appeal.” 2 2. During the course of hearing, the Ld. AR submitted that in this case, the assessment order was passed under section 147 r/w 143(3) dt. 28/03/2022 wherein the addition of Rs. 2,37,50,000/- was made by the AO towards unexplained investment under section 69 of the Act. It was submitted that against the said order, the assessee had moved in appeal before the Ld. CIT(A), NFAC, Delhi on 26/04/2022 and our reference was drawn to the Form No. 35 wherein the assessee has challenged the addition of Rs. 2,37,50,000/- as unexplained investment under section 69 of the Act. 3. It was submitted that the Ld. CIT(A), NFAC, Delhi had without issuing any notice to the assessee and without providing any opportunity to the assessee had dismissed the appeal holding that the assessee had approached the Department under the Vivad Se Vishwas Scheme 2020 and for the purpose, the Ld. CIT(A), NFAC, Delhi has placed reliance on the Form No. 5 issued by the Ld. PCIT, Chandigarh dt. 24/05/2021. Drawing our reference to the Form No. 5 dt. 24/05/2021 available at the assessee’s paper book at page no. 15, it was submitted that the said Form was issued towards full and final settlement of tax arrears in respect of original assessment order passed by the AO under section 143(3) dt. 04/12/2015 wherein the demand of Rs. 47,50,130/- was determined vide Notice of Demand under section 156 dt. 04/12/2015. It was accordingly submitted that the assessee had moved an application for settlement of the tax arrears in respect of original assessment order passed under section 143 dt. 04/12/2015 and not the assessment order which was the subject matter of appeal before the Ld. CIT(A), NFAC, Delhi which was passed under section 147 r.w. 143(3) dt. 28/03/2022. 4. It was further submitted that in view of the fact that the assessee had moved an application under the Direct Tax Vivad Se Vishwas Scheme 2020 against the original assessment order passed under section 143(3) dt. 04/12/2015, the Ld. CIT(A), NFAC, Delhi vide his earlier order dt. 27/08/2021 has taken cognizance of the same and since the appeal was pending before him, the same was dismissed as infructuous in view of the fact that the appellant had opted for Vivad Se Vishwas Scheme 2020. In this regard our reference was drawn to the findings of the Ld. CIT(A), NFAC, Delhi dt. 27/08/2021 and the contents thereof read as under: 3 “The appeal was instituted on 23/12/2015 against the order dated 04/12/2015 passed under section 143(3) of the Income tax Act, 1961 by the, ACIT CIRCLE 2(1), CHANDIGARH, for the assessment year 2013-14. Subsequently, the appeal was migrated to the National Faceless Appeals Centre in terms of Notification No.76/2020 Income Tax Department dated 25.09.2020 issued from CDBT, New Delhi. 2.0 It is noted that the appellant opted for the Vivad Se Vishwas Scheme vide application dated 14/01/2021. Pursuant thereto, the PCIT, Chandigarh-1, has certified the full and final payment of Rs. 2092413/- as taxes in terms of Form No. 5 dated 24/05/2021. In view of the above, the appeal is treated as infructuous as per clause 2 of Section 4 of the Direct Tax Vivad Se Vishwas Act, 2020. 3.0 Accordingly, the appeal is treated as dismissed for statistical purpose.” 5. It was accordingly submitted that where the Ld. CIT(A), NFAC, Delhi has already taken the cognizance of the Form No. 5 dt. 24/05/2021 while dismissing the appeal against the original assessment order passed under section 143(3), he has erred in taking cognizance of the same Form No. 5 dt. 24/05/2021 while dismissing the appeal filed by the assessee against the order passed under section 147 r.w. 143(3) dt. 28/03/2022. It was submitted that before passing of the order, the Ld. CIT(A), NFAC, Delhi did not issue any notice to the assessee and had any such opportunity been provided, the assessee would have clarify the said fact. It was accordingly submitted that the assessee may be allowed to be heard on merits and it was her limited prayer that the matter may be set aside to the file of the Ld. CIT(A), NFAC, Delhi for decision on merits. 6. The Ld. DR did not oppose the said request. 7. We have heard both the parties and perused the material available on the record. In view of the submissions made by the Ld. AR and also on the perusal of the material available on the record, it is manifestly clear that the appeal so filed by the assessee against the order passed by the AO under section 147 r.w. 143(3) dt. 28/03/2022 has been wrongly dismissed by the Ld. CIT(A), NFAC, Delhi as the assessee had not moved any application for settlement of tax disputes arising out of the order passed u/s 147 r/w 143(3) dated 28/03/2022. Accordingly, we set aside the said order and the matter is restored back to the file of the Ld. CIT(A), NFAC, Delhi to decide the same on merits as per law after providing reasonable opportunity to the assessee. Needless to say the assessee who has been brought on record as being the legal heir of the deceased assessee Shri Ishar Singh be intimated of the proceedings through 4 appropriate communication at addresses and email id available on record and the proceedings be completed in time bound manner preferably within two months of receipt of this order. 8. In the result, Ground No. 1 of the appeal is allowed for statistical purposes and Ground No. 2 & 3 are left open and not adjudicated upon and the assessee is at liberty to raise necessary contention and file relevant documentation in support thereof before the Ld. CIT(A), NFAC, Delhi who shall decide the same on merits. 9. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 05/04/2023. Sd/- Sd/- आकाश द प जैन #व$म &संह यादव (AAKASH DEEP JAIN) ( VIKRAM SINGH YADAV) उपा य / VICE PRESIDENT लेखा सद+य/ ACCOUNTANT MEMBER AG Date: 05/04/2023 ( + ! , - . - Copy of the order forwarded to : 1. The Appellant 2. The Respondent 3. $ / CIT 4. - 0 ग 2 3 & 2 3 456 ग7 DR, ITAT, CHANDIGARH 5. ग 6 8 % Guard File ( + $ By order, 9 # Assistant Registrar
