PANJURAJAN GANESAN, SIVAKASI V. DCIT, CC - 2, MADURAI

MA 166/CHNY/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 6651 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-06-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 16-05-2024
• Assessment Year: 2007-2008
• Appeal Filed On: 30-11-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

आयकर अपीलीय अिधकरण, ‘डी’ ᭠यायपीठ, चे᳖ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘D’ BENCH, CHENNAI ᮰ी महावीर ᳲसह, उपा᭟यᭃ एवं ᮰ी मनोज कुमार अᮕवाल, लेखा सद᭭य के समᭃ BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENTAND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER िविवध यािचका सं / M.A. No.165/CHNY/2023 (arising in I.T.A. Nos. 275/CHNY/2020) िनधाᭅरण वषᭅ / Assessment Year : 2009-10 Shri P. Karvannan, No.74A, Velayutham Road, Sivakasi – 626 123. PAN : ABDPK 0797N v. The Deputy Commissioner of Income Tax, Corporate Circle-2, Madurai (अपीलाथᱮ/Appellant) (ᮧ᭜यथᱮ/Respondent) & िविवध यािचका सं / M.A. No.166 & 168/CHNY/2023 (arising in I.T.A. Nos. 276 & 278/CHNY/2020) िनधाᭅरण वषᭅ /Assessment Years: 2007-08 & 2009-10 Shri Panjurajan Ganesan, No.74A, Velayutham Road, Sivakasi – 626 123. PAN : ABYPG 3315R v. The Deputy Commissioner of Income Tax, Corporate Circle 2, Madurai (अपीलाथᱮ/Appellant) (ᮧ᭜यथᱮ/Respondent) & िविवध यािचका सं / M.A. No.167/CHNY/2023 (arising in I.T.A. Nos. 277/CHNY/2020) िनधाᭅरण वषᭅ / Assessment Year : 2008-09 Late Shri P. Panjurajan, Rep. by Legal Heir Shri P. Karvannan No.74, Velayutham Road, Sivakasi – 626 123. PAN : AHIPP 5789J v. The Deputy Commissioner of Income Tax, Corporate Circle-2, Madurai (अपीलाथᱮ/Appellant) (ᮧ᭜यथᱮ/Respondent) 2 M.A Nos.165 to 168/CHNY/2023 अपीलाथᱮ कᳱ ओर से /Applicant by : Shri D. Anand, Advocate ᮧ᭜यथᱮ कᳱ ओर से/Respondent by : Shri P. Sajit Kumar, JCIT सुनवाई कᳱ तारीख/ Date of hearing : 17.05.2024 घोषणा कᳱ तारीख /Date of Pronouncement : 05.06.2024 आदेश /O R D E R PER MAHAVIR SINGH, VICE PRESIDENT: By way of these Miscellaneous Applications the assessees have requested to recall the order of the Tribunal in its order in ITA Nos. 275 to 278/CHNY/2020, order dated 02.03.2022. 2. Since, the issues raised and the facts and circumstances in all these four miscellaneous applications of three different assessees are exactly identical and admitted by ld.counsel for the assessees as well as ld.CIT-DR, these miscellaneous applications are heard together and are disposed off by this common order. Since the facts and circumstances are exactly identical and the miscellaneous petitions are also identically worded, we will take the facts from MA No.165/CHNY/2023 and will decide the issue. 3. At the outset, it is noticed that these miscellaneous applications appears to be delayed by 426 days. It is noticed that the order of the Tribunal is dated 02.03.2022 and miscellaneous applications were filed by these assessees only on 01.12.2023 and 3 M.A Nos.165 to 168/CHNY/2023 accordingly, Registry has pointed out that these miscellaneous applications are time barred by 426 days. We noted that aggrieved by the orders of the first appellate authority the assessees had preferred appeal before the Tribunal and the same was numbered as ITA.No.275/Chny/2020. While the appeal was pending before the Hon’ble ITAT, the assessee availed Direct Tax Vivad se Vishwas Scheme (DTVSV Scheme) 2020 and filed declaration under section 4(1) of Direct Tax Vivad se Vishwas Act (DTVSV Act) 2020. Consequent to the declaration filed by the assessee the Designated Authority issued Form 3 Viz the certificate under section 5(1) of DTVSV Act, 2020 on 30.01.2021. The assessee submits that once the designated authority issues certificate in Form 3, section 4(2) of DTVSV Act operates and the appeal is deemed to be withdrawn. Thus, the Hon'ble ITAT Vide its order dated 02.03.2022 dismissed the assessee’s appeal in ITA.No.275/Chny/2020 with liberty to the assessee to recall the appeal if the petitioner fails to avail the DTVSV Scheme, 2020. The aforesaid liberty to recall is specifically mentioned in section 4(6) of the DTVSV Act which states that declaration made under section 4(1) of the Act shall be presumed never to have been made if the declarant violates any of the conditions mentioned in the Act. The petitioner submits that under the scheme of the DTVSV Act,2020 the moment the designated authority issues Form 3 4 M.A Nos.165 to 168/CHNY/2023 pending appeal is deemed to have been withdrawn and the moment the declarant violates any of the conditions referred to in the Act, the appeal which is deemed to have been withdrawn shall be deemed to have been revived. The assessee states and submits that he was unable to avail the benefit under DTVSV Scheme, 2020 due to non- compliance and prays that the impugned appeal which was dismissed for availing the VSVS Scheme be restored since the assessee was unable to avail the DTVSV Scheme, 2020. 4. At this point, the ld. Senior DR stated that the assessee has not paid the due taxes within the due date as mentioned in Form 3 and hence, certificate in Form No.5 cannot be issued in view of DTVSV Act and there is no mistake in the order of the Tribunal because assessee has availed DTVSV scheme and paid part taxes also. 5. We noted that the Tribunal in its order dated 02.03.2022 noted that the assessee has paid the tax amount as per Form No.3 and in this regard, submitted Form No.4 along with his letter dated 01.03.2022. The Tribunal accordingly dismissed the appeals filed by assessee as withdrawn with a liberty to get the order recalled in case, 5 M.A Nos.165 to 168/CHNY/2023 the assessee does not succeed in availing the scheme by observing as under:- “Therefore, once the assessees have filed Form 4 and settled pending disputes regarding direct taxes, then there is no point in keeping appeals filed by the assessee and hence, we dismiss the appeals filed by the assessees subject to liberty to the assessees to get it recalled in case, the assessees does not succeed in availing the scheme i.e., Vivad Se Vishwas Scheme 2020 for whatever reason.” In our view, the delay in filing miscellaneous application from the date of order of Tribunal will not apply where the appeals were dismissed as withdrawn in view of petition to avail DTVSV scheme. Once the assessee filed application under DTVSV but could not avail the scheme and the provisions of section 4(6) of DTVSV clearly states that declaration made u/s.4(1) of the DTVSV Act shall be presumed enough to have been made if the declarant violates any of the conditions mentioned in the act. Here once the assessee could not succeed in availing the DTVSV Scheme, he moved to the Tribunal to get the order recalled so that he can argue on merits. We are of the view that the assessee has moved this petition in term of Rule 24 of the Income Tax Appellate Tribunal Rules, 1963. Admittedly, there is no order on merits and assessee is unable to avail the scheme. Hence, we recall the order of Tribunal and direct the Registry to fix this appeal for regular hearing. 6 M.A Nos.165 to 168/CHNY/2023 6. Consequently all these four Miscellaneous Applications which are identical on facts and circumstances, we are recalling the orders in ITA Nos.275, 276, 277 & 278/CHNY/2020 and direct the registry to fix all these four appeals in regular hearing. 7. In the result, the miscellaneous applications of the assessees are allowed. Order pronounced in the open court on 5 th June, 2024 at Chennai. Sd/- Sd/- (मनोज कुमार अᮕवाल) (MANOJ KUMAR AGGARWAL) लेखा सद᭭य /ACCOUNTANT MEMBER (महावीर ᳲसह ) (MAHAVIR SINGH) उपा᭟यᭃ /VICE PRESIDENT चे᳖ई/Chennai, ᳰदनांक/Dated, the 5 th June, 2024 RSR आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy to: 1. अपीलाथᱮ/Applicant 2. ᮧ᭜यथᱮ/Respondent 3. आयकर आयुᲦ /CIT, Madurai 4. िवभागीय ᮧितिनिध/DR 5. गाडᭅ फाईल/GF.