M/S SAHAJ ANKUR DEVELOPERS , MUMBAI V. DY CIT 3 (4) , MUMBAI

MA 13/MUM/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4137 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2012-2013
• Appeal Filed On: 13-01-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 5(2); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “E” BENCH, MUMBAI BEFORE SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER AND SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER M.A. No. 12/Mum./2022 and M.A. no.13/Mum./2022 IN ITA No. 330/Mum./2020 and ITA no.331/Mum./2020 (Assessment Year : 2011–12 and 2012–13) M/s. Sahaj Ankur Developers B–301, Sorrento Building Besant road, Santecruz West Mumbai 400 054 PAN – ABWFS2944L ................ Applicant v/s Dy. Commissioner of Income Tax Circle–3(4), Mumbai ................ Respondent Assessee by : Ms. Rashmi Vyas Revenue by : Shri S.N. Kabra Date of Hearing – 29.04.2022 Date of Order – 30.05.2022 O R D E R PER SANDEEP SINGH KARHAIL, J.M. By way of these Miscellaneous Applications, the assessee seeks recall of the consolidated order dated 24.06.2021, passed by the Tribunal in assessee’s appeals being ITA no.330 & 331/Mum./2020, for the assessment year 2011–12 and 2012–13. M/s. Sahaj Ankur Developers M.A. No. 13 & 14/Mum./2022 Page | 2 2. During the course of hearing, the learned Authorised Representative (“learned A.R.”) submitted that at the time of hearing of appeal before the Tribunal, the assessee had submitted Form no.1 and 2, filed under the Direct Tax Vivad Se Vishwas Act, 2020 (“VSV Act”) as well as Form no.3, received from the Department and requested for withdrawal of the appeals for the aforesaid assessment years. In view of the assessee’s request, appeals for the assessment years 2011–12 and 2012–13, were dismissed as withdrawn by the Tribunal vide order dated 24.06.2021. 3. Before us, the learned A.R. for the assessee submitted that the assessee could not make payment of the amount determined to be payable under the VSV Act within the prescribed limit. Therefore, the assessee is now seeking revival of its appeals for both the assessment years under consideration. 4. On the other hand, the learned Departmental Representative also confirmed non–compliance of the conditions by the assessee under VSV Act. 5. Having heard both the parties and having perused the material available on record, we find that the assessee’s appeals for both the assessment years were dismissed as withdrawn since the assessee had opted to settle its tax dispute under VSV Act. However, subsequently, the assessee did not make the payment within the prescribed time as M/s. Sahaj Ankur Developers M.A. No. 13 & 14/Mum./2022 Page | 3 required under the VSV Act. From the analysis of provisions of section 4 of VSV Act, we find that upon filing of the declaration before the designated authority in the prescribed manner, any appeal pending before the Income Tax Appellate Tribunal or before the learned Commissioner of Income Tax (Appeals) in respect of disputed income / interest / penalty / fee and tax arrears, shall be deemed to have been withdrawn from the date on which certificate (i.e., Form no.3) under section 5(1) of VSV Act is issued by the designated authority. From the facts available on record, it is evident that in the present case, Form no.3, was issued by the designated authority pursuant to declaration filed by the assessee determining the amount required to be paid by the assessee under the VSV Act. We further find that the assessee is required to file proof of the withdrawal along with intimation of payment to the designated authority under section 5(2) vide Form no.4. However, in the present case, the assessee could not make the payment of the amount determined by the designated authority under VSV Act. Further, provisions of section 4(6)(b) of VSV Act provides that the declaration made by the assessee shall be presumed never to have been made if the assessee violates any of the conditions referred to in the VSV Act, and in such case all proceedings and claims which were withdrawn under section 4 and all consequences under the Income Tax Act, 1961, against the assessee shall be deemed to have been revived. M/s. Sahaj Ankur Developers M.A. No. 13 & 14/Mum./2022 Page | 4 6. In the present case, as the assessee could not make the payment and thus did not comply with the conditions of VSV Act, therefore, we are of the considered view that the appeals filed by the assessee for the assessment years 2011–12 and 2012–13 are revived as per the provisions of section 4(6)(b) of the VSV Act. Consequently, the order dated 24.06.2021 passed by the Co–ordinate Bench of Tribunal is hereby recalled and the appeals filed by the assessee for the assessment years 2011–12 and 2012–13 are restored for hearing on merits. Registry is directed to list these appeals for hearing on merits in due course while issuing notice to the parties in advance intimating date of hearing. We order accordingly. 7. In the result, Miscellaneous Applications by the assessee are allowed. Order pronounced in the open court on 30/05/2022 Sd/- OM PRAKASH KANT ACCOUNTANT MEMBER Sd/- SANDEEP SINGH KARHAIL JUDICIAL MEMBER MUMBAI, DATED: 30/05/2022 M/s. Sahaj Ankur Developers M.A. No. 13 & 14/Mum./2022 Page | 5 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The CIT(A); (4) The CIT, Mumbai City concerned; (5) The DR, ITAT, Mumbai; (6) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary Assistant Registrar ITAT, Mumbai