Utopia India Private Limited, Bengaluru V. ACIT Corporate Circle 3(2), CHENNAI

ITTPA 24/CHNY/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 7428 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 02-02-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 26-06-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R ANITHA JCIT
• Keywords: Condonation of delay
• Section: 6; 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: CHENNAI . , !' # $% , & !' %' BEFORE SHRI DUVVURU RL REDDY, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBE R # ./ IT(TP)A NO.24/CHNY/2018 ( )( /ASSESSMENT YEAR: 2012-13 M/S. UTOPIA INDIA PVT. LTD., 92, ZED SQUARE, JYOTHI NIVAS COLLEGE ROAD, KORAMANGALA INDUSTRIAL LAYOUT, 5 TH BLOCK KORAMANGALA, BENGALURU 560 095. VS. THE ASST. COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-3(2), CHENNAI. [PAN: AAACU 7629J ] ( *+ /APPELLANT) ( ,-*+ /RESPONDENT) *+ . / / APPELLANT BY : SHRI SAROJ KUMAR PARIDA, ADVOCATE ,-*+ . / /RESPONDENT BY : SHRI R. ANITHA, JCIT . 0& /DATE OF HEARING : 02.02.2021 12) . 0& / DATE OF PRONOUNCEMENT : 04.02.2021 !3 / O R D E R PER BENCH : THE ASSESSEE FILED THIS APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-11, CHENNAI, IN ITA NO.88/2016 -17 DATED 11.04.2018 FOR THE ASSESSMENT YEAR 2012-13. 2. WE HAVE HEARD THE COUNSEL FOR THE ASSESSEE AND T HE LD. DR AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE TI ME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE INVITING OUR ATTENTION TO THE COPY OF THE LETTER DATED 01.02.2021 SUBMITTED THAT THE ASSESSEE WANTS TO UTI LIZE THE DIRECT TAXES IT(TP)A NO.24/CHNY/2018 :- 2 -: VIVAD SE VISHWAS SCHEME, 2020 TO SETTLE PENDING D ISPUTE RELATING TO DIRECT TAXES AND IN THIS REGARD THE ASSESSEE HAS SUBMITTED A COPY OF FORM 3 RECEIVED FROM THE DESIGNATED AUTHORITY. 3. THE BENCH HAS CONSIDERED RIVAL CONTENTIONS OF BO TH SIDES AND AFTER HEARING BOTH PARTIES, WE FOUND THAT THE GOVERNMEN T OF INDIA HAS ANNOUNCED IN THE BUDGET, 2020, A DIRECT TAXES VIVAD SE VISHW AS SCHEME, 2020 TO SETTLE PENDING DISPUTE RELATING TO DIRECT TAXES AT VARIOUS APPELLATE FORUMS INCLUDING THE FIRST APPELLATE AUTHORITY, TRIBUNAL , HIGH COURT AND SUPREME COURT. IN THIS REGARD, THE SCHEME HAS BEEN NOTIFIED ON 17 TH MARCH, 2020 AND BECAME DIRECT TAXES VIVAD SE VISHWAS ACT, 2020. A S PER THE SAID SCHEME, ASSESSEE IS ALLOWED TO SETTLE DIRECT TAX DISPUTE IN A MANNER AND PROCEDURE PRESCRIBED THEREIN BY FILING NECESSARY DECLARATION AND UNDERTAKING. THE SCHEME HAS ALSO SPECIFIED THE AMOUNT OF TAXES, INTE REST, AND PENALTY, IF ANY PAYABLE UNDER THE ACT. IF AN ASSESSEE FILED A DE CLARATION AND PAY SPECIFIED TAXES AS PER THE SCHEME AND WITHDRAW THE APPEA L PENDING BEFORE THE APPELLATE AUTHORITIES, THE DESIGNATED AUTHORITY S HALL PASS AN ORDER IN FORM 5 CONFIRMING PAYMENT MADE UNDER THE SCHEME AND GRA NT IMMUNITY FROM PENALTY AND PROSECUTION. 4. THE ASSESSEE HAS SUBMITTED A COPY OF FORM NO.3 R ECEIVED FROM THE DESIGNATED AUTHORITY. THEREFORE, ONCE THE ASSESSEE FILED A DECLARATION IN FORM NO.1 ALONG WITH UNDERTAKING AND EXPRESSED THEIR WIL LINGNESS TO SETTLE PENDING DISPUTES REGARDING DIRECT TAXES, THEN THERE IS NO P OINT IN KEEPING THE APPEAL IT(TP)A NO.24/CHNY/2018 :- 3 -: FILED BY THE ASSESSEE. WE, FURTHER NOTED THAT RECE NTLY THE HONBLE JURISDICTIONAL HIGH COURT OF MADRAS HAS CONSIDERED AN IDENTICAL APPLICATION FILED BY AN ASSESSEE IN THE CASE OF M/S. NANNUSA MY MOHAN (HUF) VS. ACIT IN T.C.A NO.372 OF 2020 FOR AVAILING THE BENEFIT O F VIVAD SE VISHWAS SCHEME, 2020, WHERE THE HONBLE HIGH COURT HAS D ISMISSED THE APPEAL FILED BY THE PETITIONER AS WITHDRAWN, BUT ALLOWED LIBERTY TO THE ASSESSEE TO RESTORE THE APPEAL IN THE EVENT THE DESIGNATED AUTHORITY FOR ANY REASON REJECT APPLICATION FILED BY THE ASSESSEE UNDER SECTION 4 OF THE ACT. THE RELEVANT PORTIONS OF THE OBSERVATIONS OF THE HONBLE HIGH CO URT OF MADRAS VIDE ORDER DATED 16.10.2020 ARE EXTRACTED AS UNDER:- 2. WE HAVE HEARD MR.M.P.SENTHIL KUMAR, LEARNED C OUNSEL APPEARING FOR THE APPELLANT/ASSESSEE AND MR.T.R.SENTHIL KUMAR, LEA RNED SENIOR STANDING COUNSEL AND MS. K.G.USHA RANI, LEARNED COUNSEL FO R THE RESPONDENT/REVENUE. 3. THE LEARNED COUNSEL FOR THE APPELLANT / ASSESSEE , ON INSTRUCTIONS, SUBMITTED THAT THE APPELLANT / ASSESSEE INTENDS TO AVAIL THE BENEF IT OF VIVAD SE VISHWAS SCHEME ( VVS SCHEME' FOR BREVITY) AND IN THIS REGARD, THE AS SESSEE IS TAKING STEPS TO FILE THE APPLICATION / DECLARATION IN FORM NO. 1. 4. IT MAY NOT BE NECESSARY FOR THIS COURT TO DECIDE THE SUBSTANTIAL QUESTIONS OF LAW FRAMED FOR CONSIDERATION ON ACCOUNT OF CERTAIN SUBS EQUENT 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 OR INCIDENTAL THERETO. THE ACT OF THE PARLIAMENT RE CEIVED 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 FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL OR BEFOR E 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 M EANS A PERSON, WHO FILES A DECLARATION UNDER SECTION 4 ON OR BEFORE THE LAST D ATE FILES A DECLARATION TO THE DESIGNATED AUTHORITY IN ACCORDANCE WITH THE PROVISI ONS OF SECTION 4 IN RESPECT OF TAX ARREARS, THEN, NOTWITHSTANDING ANYTHING CONTAINED I N THE INCOME TAX ACT OR ANY OTHER LAW FOR THE TIME BEING IN FORCE, THE AMOUNT P AYABLE BY THE DECLARANT SHALL BE DETERMINED IN TERMS OF SECTION 3(A-C) THEREUNDER. 6. THE FIRST PROVISO TO SECTION 3 STATES THAT IN C ASE 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 SHAL L BE ONE-HALF OF THE AMOUNT IN THE TABLE STIPULATED IN SECTION 3 CALCULATED ON SUC H ISSUE, IN SUCH A MANNER AS MAY BE PRESCRIBED. THE SECOND PROVISO DEALS WITH THE CA SES, WHERE THE MATTER IS BEFORE THE COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RE SOLUTION PANEL. THE THIRD IT(TP)A NO.24/CHNY/2018 :- 4 -: PROVISO DEALS WITH CASES, WHERE THE ISSUE IS PENDIN G 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 OFFENCE AND IMPOSITION OF PENALTY IN CERTAIN CASES. SECTION 9 O F THE ACT DEALS WITH CASES, WHERE THE ACT 3 OF 2020 WILL NOT BE APPLICABLE. 7. AS OBSERVED, THE ASSESSEE IS GIVEN LIBERTY TO RE STORE 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 A SSESSEE. IF SUCH A PRAYER IS MADE, THE REGISTRY SHALL ENTERTAIN THE PRAYER WITHOUT INS ISTING UPON ANY APPLICATION TO BE FILED FOR CONDONATION OF DELAY IN RESTORATION OF TH E 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 O RDERS. 8. IN THE LIGHT OF THE ABOVE, WE DIRECT THE APPE LLANT / ASSESSEE TO FILE THE FORM NO.1 ON OR BEFORE 20.11.2020 AND THE COMPETENT AUTH ORITY SHALL PROCESS THE APPLICATION / DECLARATION IN ACCORDANCE WITH THE AC T AND PASS APPROPRIATE ORDERS AS EXPEDITIOUSLY AS POSSIBLE PREFERABLY WITHIN A PERIO D OF SIX (6) WEEKS FROM THE DATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FOR M. 5. IN THE LIGHT OF THE ABOVE DECISION OF THE HONBL E HIGH COURT OF MADRAS, AND BY TAKING NOTE OF THE FACT THAT THE ASSESSEE HAD SUBMITTED A COPY OF FORM 3 RECEIVED FROM THE DESIGNATED AUTHORITY, WE D ISMISS THE APPEAL FILED THE ASSESSEE, SUPRA, AS WITHDRAWN. HOWEVER, LIBERTY IS GIVEN TO THE THE ASSESSEE TO RESTORE THE APPEAL, IN THE EVENT OF THE DESIGNATED AUTHORITY, FOR ANY REASON REJECT THE APPLICATION FILED BY THE ASSE SSEE UNDER SECTION 4 OF THE SAID ACT. WE, FURTHER MAKE IT CLEAR THAT IF THE ASS ESSEE HAS FOR ANY REASON OPTED OUT FROM THE SCHEME OR THE APPLICANT UNDER TH E SCHEME MISREPRESENT ANY FACT WHICH RESULTED IN REJECTION OF APPLICATION FILED UNDER THE SCHEME, THEN THE PROVISIONS OF SECTION 4(6) OF THE ACT, SHALL BE APPLICABLE TO SUCH APPEAL AND IN SUCH CASE, THE PROCEEDINGS AND THE CLAIMS WHICH WERE WITHDRAWN UNDER SECTION 4 AND ALL THE CONSEQUENCES UNDER THE INCOME-TAX ACT AGAINST THE DECLARANT ASSESSEE SHALL BE DEEMED TO HAVE BEE N REVIVED . WE, FURTHER MAKE IT CLEAR THAT THE ASSESSEE SHOULD PROMPTLY INF ORM THE ASSESSING OFFICER IT(TP)A NO.24/CHNY/2018 :- 5 -: ABOUT THEIR DECISION TO OPT OUT OF THE SCHEME OR RE JECTION OF APPLICATION BY THE DESIGNATED AUTHORITY TO THE ASSESSING OFFICER, SO A S TO ENABLE TO FILE MISCELLANEOUS APPLICATION TO RESTORE THE APPEAL. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED AS WITHDRAWN. ORDER PRONOUNCED ON THE DAY OF 04 TH FEBRUARY, 2021 IN CHENNAI. SD/- SD/- ( . ) (DUVVURU RL REDDY) /JUDICIAL MEMBER ( . ) (S. JAYARAMAN) /ACCOUNTANT MEMBER /CHENNAI, 4!# /DATED: 04 TH FEBRUARY, 2021 . EDN, SR. P.S !3 . ,056 76)0 /COPY TO: 1. *+ /APPELLANT 2. ,-*+ /RESPONDENT 3. 80 ( )/CIT(A) 4. 80 /CIT 5. 69: ,0 /DR 6. : ( ; /GF