BMV EXIM (P) Ltd., Ludhiana V. JCIT, R-III, Ludhiana

MA 16/CHANDI/2022

AI Insights

The case involves M/s BMV Exim (P) Limited, which filed a Miscellaneous Application concerning an earlier dismissed appeal related to the Vivad Se Vishwas Scheme, 2020. The original appeal was dismissed because the assessee opted to settle under the Vivad Se Vishwas Scheme, submitting the necessary forms. However, due to financial constraints, the assessee could not deposit the requisite taxes, leading to the filing of the Miscellaneous Application to restore the appeal. The Tribunal found that the assessee's failure to pay the determined taxes voided their declaration under the scheme, thus reviving their right to appeal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 127572 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-03-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-03-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 28-08-2022
• Laws Referred To: Income Tax Act, 1961, Direct Tax Vivad Se Vishwas Act 2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 254(2)

Judgement Text

आयकर अपील य अ धकरण,च डीगढ़ यायपीठ “ए” , च डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH “ A ”, CHANDIGARH ी स ु धांश ु ीवा तव, या यक सद य, एवं ी "व#म %संह यादव, लेखा सद य BEFORE: SHRI. SUDHANSHU SRIVASTAVA, JM & SHRI. VIKRAM SINGH YADAV, AM Miscellaneous Application No. 16/Chd/2022 In ( ITA NO. 504 /Chd/ 2018) Assessment Year : 2011-12 M/s BMV Exim (P) Limited, 961, Purana Bazar, Ludhiana The JCIT Range-III, Ludhiana PAN NO: AADCB0343B Appellant Respondent ! " Assessee by : None (Adj. Application) # ! " Revenue by : Shri Manveet Singh Sehgal, Sr. DR $ % ! & Date of Hearing : 17/03/2023 '()* ! & Date of Pronouncement : 21/03/2023 आदेश/Order PER VIKRAM SINGH YADAV, A.M. : The present Miscellaneous Application has been filed by the Assessee in respect of order passed by the Coordinate Bench in ITA No. 504/Chd/2018 dt. 04/03/2021 wherein the appeal of the assessee was dismissed in view of the assessee’s pending application under the Vivad Se Vishwas Scheme, 2020. 2. None appeared on behalf of the assessee but an adjournment application has been filed by the Ld. AR Shri Pankaj Bhalla. However considering the facts that this Miscellaneous Application is pending for quite sometime, we find no useful purpose would be served in adjourning the matter any further. Hence basis the material available on the record and after hearing the Ld. DR, the matter is hereby been decided. 3. In its misc. application, it was submitted by the assessee company that it had preferred an application as per Form 1 & 2 to settle the tax dispute under Vivad Se Vsihwas Scheme, 2020 on 26/12/2020 and thereafter basis declaration so filed by the 2 assessee, Form 3 was issued by the Income Tax Department on 31/12/2020. It was submitted that due to acute financial crunch and losses, the assessee company was unable to deposit the requisite taxes and settled its dispute under the Vivad Se Vishwas Scheme, 2020. Thereafter various communications were received by the assessee from the Income Tax Department to deposit tax under the Vivad Se Vishwas Scheme which the assessee company was unable to comply with. In light of aforesaid facts, it was submitted that the assessee company is filing the present Miscellaneous Application to seek recall of the order so passed by the Coordinate Bench and restoration of the appeal for adjudication on merits of the case. 4. It was submitted that the Coordinate Bench while passing its order has granted the liberty to the assessee to seek restoration of the appeal in case the assessee is unable to settle the dispute under the Vivad Se Vishwas Scheme, 2020. It was submitted that the assessee company has a good case on merits and fair chance of succeeding in appeal and non restoration of appeal shall lead to gross miscarriage of justice and take a toll on the financial health of the assessee Company. It was accordingly submitted that in terms of Rule 254(2) r.w.r 24 of the Income Tax Rules, the present Miscellaneous Application filed by the assessee may be allowed and the order so passed by the Coordinate Bench may be recalled and the appeal be restored at the original number and assessee be allowed to be heard on merits of the case. 5. Per contra, the Ld. DR has relied on the provisions of Vivad Se Vishwas Scheme, 2020 and submitted that once the assessee has given declaration then he is bound to withdraw the appeal and which has happened in the instant case and where the appeal of the assessee was dismissed by the Coordinate Bench. It was accordingly, submitted that there is no interference which is called for in terms of recalling the order so passed by the Coordinate Bench. 6. We have heard the rival contention and perused the material available on the record. Here, it would be relevant to refer to the order of the Coordinate Bench and the contents thereof read as under: “ The present appeal has been filed by the assessee challenging the order of Ld. Commissioner of Income Tax (Appeals)-1, Ludhiana, (hereinafter referred to as CIT(A) dated 07.03.2018 for the assessment year 2011-12, passed u/s 250(6) of the Income Tax Act, 1961 (in short “Act”). 3 2. Ld. Counsel for the assessee submitted before us that it was willing to settle the dispute under the “Vivad Se Vishwas Scheme-2020” and necessary forms in this regard had been filled. An application, expressing the above intent of the assessee, was filed before us. 3. In view of the above since the assessee has expressed its intention of not pursuing the appeal and opting for settling the dispute in the scheme framed by the legislature in this regard, the impugned appeal is dismissed, with the liberty granted to the assessee to get the appeal restored in case it is unable to settle the dispute under “Vivad Se Vishwas Scheme-2020”. 7. It is noticed that the appeal of the assessee was dismissed on account of the fact that the assessee was willing to settled its dispute under the Vivad Se Vishwas Scheme, 2020 and necessary form had been submitted and the assessee had expressed its intention before the Coordinate Bench of not pursuing the present appeal and opting for the settlement and at the same time liberty was granted to the assessee to get the appeal restored in case it is unable to settle the dispute under the Vivad Se Vishwas Scheme, 2020. 8. It is a matter of record that the Appropriate authority, as per Sub Section 1 of Section 5 of the Direct Tax Vivad Se Vishwas Act 2020 has determined an amount of Rs 74,05,031/- to be payable on or before 31/03/21 and Rs 82,71,776/- to be payable after 31/03/21 in Form No. 3 dt. 31/12/2020 and the assessee has failed to deposit the requisite taxes as so admitted by it. Here it is also relevant to note that while determining the quantum of taxes payable, the Appellate Authority has stated categorically that in case of non-payment of amount payable as per the aforesaid Form No. 3, the declaration under Form-1 shall be treated as void and shall be deemed never to have been made. 9. In light of aforesaid, it is clear that due to non-payment of taxes as so determined by the Appropriate authority, the matter has not been settled under the Vivad Se Vishwas Scheme and the declaration so filed by the assessee stands void and shall be deemed to never to have been made. Consequentially, the assessee’s right to be heard in respect of its appeal before the Tribunal revives and the assessee deserve an opportunity to be heard on merits of its case. 10. In light of the above, the order so passed by the Coordinate Bench, wherein the liberty was also granted to the assessee to seek a recall of the order, is hereby recalled 4 and appeal is restored at its original number and Registry is directed to list the matter in due course and issue notice to the parties. 11. In the result, misc. application filed by the assessee company is allowed. (Order pronounced in the open Court on 21/03/2023) Sd/- Sd/- स ु धांश ु ीवा तव "व#म %संह यादव (SUDHANSHU SRIVASTAVA) ( VIKRAM SINGH YADAV) या यक सद य / JUDICIAL MEMBER लेखा सद य/ ACCOUNTANT MEMBER AG Date: 21/03/2023 ( + ! , - . - Copy of the order forwarded to : 1. The Appellant 2. The Respondent 3. $ / CIT 4. $ / 0 1 The CIT(A) 5. - 2 ग 4 5 & 4 5 678 ग9 DR, ITAT, CHANDIGARH 6. ग 8 : % Guard File ( + $ By order, ; # Assistant Registrar