Bipinchandra Bavabhai Patel, Valsad V. The DCIT, Cent. Cir.-1, Surat

MA 03/SRT/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5827 (ITAT-SURAT)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-04-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 22-01-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: KRUNAL MASRANI
• Keywords: Bonafide belief; Reasonable cause; Bonafide mistake

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, HON'BLE JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, HON'BLE ACCOUNTANT MEMBER (VIRTUAL HEARING) MA NO. 01 /SRT/2021 IN ITA NO. 1086/AHD/2017 [ [ / ASSESSMENT YEAR: 2013-14 SHRI BIPINCHANDRA BAVABHAI PATEL, PRAMUKH PRASAD, NEAR N.H. NO.8, LINK ROAD, DUNGRI, VALSAD- 396001. PAN : AIHPP2788D VS . THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, SURAT. / APPELLANT /RESPONDENT MA NO.03/SRT/2021 IN ITA NO 1017/AHD/2017 (A.Y. 2013-14) SHRI BIPINCHANDRA BAVABHAI PATEL, PRAMUKH PRASAD, NEAR N.H. NO.8, LINK ROAD, DUNGRI, VALSAD- 396001. PAN : AIHPP2788D VS . THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, SURAT. / APPELLANT /RESPONDENT [ /ASSESSEE BY SHRI KRUNAL MASRANI C A /REVENUE BY SMT. USHA SHROTE SR.DR / DATE OF HEARING: 1 6 . 0 4 .20 2 1 /PRONOUNCEMENT ON: 1 6 . 0 4 .202 1 /O R D E R PER PAWAN SINGH, JUDICIAL MEMEBER: 1. THESE TWO MISCELLANEOUS APPLICATIONS (MAS) ARE FILED BY THE ASSESSEE FOR RECALLING OF ORDER DATED 09.12.2020 IN ITA NO.1017 & 1086/AHD/2016 BOTH FOR THE A.Y. 2013-14. THE LD. AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE SUBMITS THAT THESE CROSS APPEALS WERE DISPOSED OF BY THE TRIBUNAL VIDE ORDER BIPINCHANDRA BHARABHAI PATEL VS. DCIT MA NOS.01 & 03/SRT/2021 FOR A.Y. 2013-14 2 DATED 09.12.2020, THE ORDER OF THE TRIBUNAL WAS RECEIVED BY ASSESSEE ON 24.12.2020. 2. THE LD. AR FOR THE ASSESSEE FURTHER SUBMITS, THOUGH THE NOTICE OF TRIBUNAL FOR THE HEARING FIXED ON 09.12.2020 WAS RECEIVED BY THE ASSESSEE , HOWEVER, THE EITHER THE ASSESSEE OR HIS REPRESENTATIVE NOT APPEAR ON 09.12.2020 AND THE HON'BLE TRIBUNAL DECIDED BOTH THE APPEALS FOR NON-ATTENDANCE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE LD. AR FOR THE ASSESSEE FURTHER SUBMITS THAT ASSESSEE HAD MOVED APPLICATION FOR SETTLEMENT OF DISPUTE WITH THE DEPARTMENT UNDER VIVAD SE VISHWAS SCHEME-2020 (VSV) AND WAS UNDER THE BONAFIDE BELIEF THAT ONCE THE ASSESSEE HAS APPLIED FOR SEEKING THE BENEFITS UNDER VSV, HE IS NOT REQUIRED TO ATTEND THE PROCEEDINGS BEFORE INCOME TAX AUTHORITIES. THE ASSESSEE MOVED APPLICATION FOR SETTLEMENT UNDER VSV ON 26.08.2020. THE APPLICATION OF ASSESSEE HAS BEEN ACCEPTED BY THE DEPARTMENT ON 22.12.2020. THE COPY OF FORM-1, 2 & 3 IS ALSO FURNISHED ALONG WITH THE MAS. THE LD.AR FOR THE ASSESSEE PRAYED THAT THERE IS SUFFICIENT CAUSE FOR NON-APPEARANCE DUE TO BONAFIDE BELIEF THAT ONCE THE ASSESSEE HAS APPLIED UNDER VSV, THE ASSESSEE IS NOT REQUIRED TO APPEAR BEFORE THE INCOME TAX AUTHORITIES OR TRIBUNAL. THE LD.AR FOR THE ASSESSEE PRAYED THAT ORDER MAY BE RECALLED AS THE ASSESSEE HAS ALREADY SETTLED DISPUTE IN BOTH THE APPEALS AS MENTIONED IN FORM-3 ISSUED UNDER SECTION 5 OF VSV. THE LD.AR SUBMITS THAT ASSESSEE IS ALSO PRESENT IN VIRTUAL HEARING AND NOW BIPINCHANDRA BHARABHAI PATEL VS. DCIT MA NOS.01 & 03/SRT/2021 FOR A.Y. 2013-14 3 REALIZED HIS MISTAKE FOR NOT INFORMING HIS COUNSEL ABOUT THE DATE OF HEARING BEFORE TRIBUNAL. 3. THE ASSESSEE, WHO IS PRESENT IN PERSON IN VIRTUAL HEARING ALONG WITH HIS COUNSEL, FAIRLY CONCEDED HIS MISTAKE ABOUT NOT INFORMED HIS COUNSEL ABOUT THE HEARING OF APPEAL BEFORE TRIBUNAL. THE ASSESSEE ONCE AGAIN RETREATED THAT HE WAS UNDER THE IMPRESSION THAT ONE HE HAS APPLIED FOR SEEKING THE BENEFIT OF VSV, HE IS NOT REQUIRE TO ATTEND HEARING BEFORE INCOME TAX AUTHORITIES. THE ASSESSEE PRAYED THAT HE WILL NOT COMMIT SUCH MISTAKE IN FUTURE IN NON-COMPLIANCE OF NOTICE OF THE TRIBUNAL OR INCOME TAX AUTHORITIES. 4. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (SR. DR) FOR THE REVENUE AFTER GOING THROUGH THE CONTENTS OF FORM-3 DATED 22.12.2020 AND HEARING THE ORAL SUBMISSIONS OF ASSESSEE AND HIS ASSURANCE THAT IN FUTURE HE WILL NOT COMMIT DEFAULT IN NON- COMPLIANCE OF NOTICES OF INCOME TAX AUTHORITIES AND TRIBUNAL, FAIRLY SUBMITS THAT THE BENCH MAY TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW. 5. WE HAVE CONSIDERED THE CONTENTION OF BOTH THE PARTIES AND GONE THROUGH THE CONTENTS OF MAS FILED BY THE ASSESSEE. WE HAVE NOTED THAT THESE APPEALS WERE LISTED ON 09.12.2020. NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE THROUGH REGISTERED POST WITH ACKNOWLEDGEMENT DUE (RPAD). HOWEVER, DESPITE THE SERVICE OF NOTICE, NEITHER THE ASSESSEE NOR HIS REPRESENTATIVE APPEARED, BIPINCHANDRA BHARABHAI PATEL VS. DCIT MA NOS.01 & 03/SRT/2021 FOR A.Y. 2013-14 4 THEREFORE, WE HAVE HEARD THE APPEAL EX-PARTE AND DECIDED THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD IN EX-PARTE PROCEEDINGS. NOW THE LD.AR OF THE ASSESSEE VEHEMENTLY SUBMITTED THAT THE ASSESSEE HAD APPLIED FOR VSV-2020 FOR SETTLEMENT FOR DISPUTE WITH THE REVENUE ON 26.08.2020. IN SUPPORT OF HIS CONTENTION THE ASSESSEE HAS FURNISHED FORM 1& 2 DATED 26.08.2020. THE ASSESSEE ALSO CONTENDED THAT DUE TO BONAFIDE BELIEF THAT ONCE HE HAS APPLIED FOR THE BENEFITS UNDER VSV, HE IS NOT REQUIRED TO APPEAL BEFORE INCOME TAX AUTHORITIES OR TRIBUNAL. FURTHER, WE HAVE SEEN THAT FORM-3 DATED 22.12.2020 IS ALSO ISSUED TO THE ASSESSEE SHOWING THE DETAILS OF PENDING APPEALS BEFORE THE TRIBUNAL. HENCE, WE FIND CONVINCING FORCE IN THE SUBMISSION OF THE LD. AR OF THE ASSESSEE. 6. CONSIDERING THE PECULIARITY OF FACT AND THE STATEMENT OF THE ASSESSEE, WHO WAS PRESENT IN PERSON AND HIS LD.AR, WE FIND THAT THE ASSESSEE HAS BEEN ABLE TO SHOW A REASONABLE CAUSE FOR NON- APPEARANCE DUE TO BONAFIDE MISTAKE ON 09.12.2020, THEREFORE, THE ORDER DATE 09.12.2020 IN ITA NO.1017/AHD/2016 AND 1086/AHD/2016 BOTH FOR THE A.Y. 2013-14 IS RECALLED. IN THE RESULT BOTH THE MAS ARE ALLOWED. BOTH THE APPEALS ARE RESTORED TO THEIR ORIGINAL POSITION. APPLICATION FOR WITHDRAWAL OF APPEAL BY ASSESSEE (ITA NO.1017/AHD/2017) BIPINCHANDRA BHARABHAI PATEL VS. DCIT MA NOS.01 & 03/SRT/2021 FOR A.Y. 2013-14 5 7. WE HAVE FURTHER NOTED THAT ASSESSEE VIDE APPLICATION DATED 23.12.2020 HAS ALREADY MOVED APPLICATION FOR WITHDRAWAL OF HIS APPEAL ON THE GROUND THAT HE HAS SETTLED DISPUTE WITH REVENUE AND FORM-3 OF VSV IS RECEIVED. FROM THE CONTENTS OF FORM-3 OF VSV, WE HAVE SEEN THE ASSESSEE HAS ALSO SETTLED THE DISPUTE WITH THE DEPARTMENT IN REVENUES APPEAL AS WELL. CONSIDERING THE FACT THAT WE HAVE RESTORED THE APPEAL TO ITS ORIGINAL NUMBER AND THE FACT THAT THE ASSESSEE HAS SETTLED THE DISPUTE WITH THE DEPARTMENT, THEREFORE, ASSESSEE IS ALLOWED TO WITHDRAW HIS APPEAL. IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO.1086/AHD/2016 FOR A.Y. 2013-14 IS DISMISSED AS WITHDRAWN. 8. FURTHER CONSIDERING THE FACT THAT ASSESSEE HAS SETTLED THE DISPUTE WITH THE REVENUE APPEAL AS WELL, AS MENTIONED IN FORM- 3, THEREFORE, THE REVENUES APPEAL IN ITA NO. 1017/AHD/2016 HAS BECOME INFRACTIOUS AND DISMISSED. 9. HOWEVER, BOTH THE PARTIES ARE GIVEN LIBERTY TO FILE APPROPRIATE APPLICATION IF AT LATER STAGE IT IS DISCOVERED THAT ANY GRIEVANCE IS LEFT TO THEM. THE ASSESSING OFFICER IS ALSO DIRECTED TO PASS THE CONSEQUENTIAL ORDER AS PER THE CBDT CIRCULAR NO. CIRCULAR NO.3/2021 DATED 04.03.2021. 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IN ITA NO. 1086/AHD/2016 IS DISMISSED AS WITHDRAWN AND REVENUES APPEAL IN ITA NO. 1017/AHD/2016 IS DISMISSED BEING INFRACTIOUS. BIPINCHANDRA BHARABHAI PATEL VS. DCIT MA NOS.01 & 03/SRT/2021 FOR A.Y. 2013-14 6 ORDER PRONOUNCED ON 16 TH APRIL 2021 WHILE HEARING THE APPEAL. SD/- SD/- (DR. ARJUN LAL SAINI) (PAWAN SINGH) ( /ACCOUNTANT MEMBER) ( /JUDICIAL MEMBER) / SURAT, DATED : 16 TH APRIL, 2021 / #SGR COPY OF ORDER SENT TO:- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT