Sky Blue Infotech Pvt Ltd, New Delhi V. ITO WARD - 23(4), New Delhi

MA 283/DEL/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7296 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-05-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 27-06-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay
• Section: 254(2)

Judgement Text

1 | Page IN THE INCOME TAX APPELLATE TRIBUNAL DELHI “SMC” BENCH: NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER M.A.No.283/Del/2023 [In ITA No.438/Del/2020] [Assessment Year : 2010-11] Sky Blue Infotech Pvt.Ltd., 206, Hans Bhawan, 1, Bahadurshah Zafar Marg, New Delhi-110002. PAN-AALCS1584K vs ITO, Ward-23(4), New Delhi. APPELLANT RESPONDENT Appellant by Shri Suresh Kumar Gupta, CA Respondent by Shri Om Parkash, Sr.DR Date of Hearing 16.02.2024 Date of Pronouncement 09.05.2024 ORDER PER KUL BHARAT, JM : By this Miscellaneous application, the assessee is seeking for recalling of the order dated 29.06.2021 passed by the Tribunal in ITA No.438/Del/2020 for the Assessment Year 2010-11. 2. Ld. Counsel for the assessee reiterated the submissions as made in the application. For the sake of clarity, the relevant contents of the application are reproduced as under:_ 1. “The above captioned appeal was decided by the Hon'ble Bench through an order passed on 29.06.2021 dismissing as withdrawn the appeal of the appellant on the ground that the appellant has opted for settlement of Dispute covered by the appeal under the Vivad Se Vishwas Scheme 2020. 2 | Page 2. The appellant was unable to comply with the condition of taxes as per the demand raised in Form 3 dt: 07.04.2021 issued by Ld Pr CIT, Delhi-7, New Delhi with the result that the application under above scheme stands rejected following which the appellant has been left remedy less as the appeal already been disposed off as dismissed/withdrawn. 3. The appellant seeks to draw your kind attention to the non-payment of tax as per Form 3 and consequent non-submission of Form 4 which is required to be submitted on payment of taxes as per Form 3. The copy of screenshot showing pendency of Form -4 and Form 26AS showing non-payment of tax are enclosed as annexure e to the present submission. 4. The appellant seeks restoration of above appeal so that issues raised in the grounds of appeal in the present appeal be allowed to be adjudicated. 5. The appellant is conscious of the fact that the present application under section 254(2) is required to be submitted within period of six months from the end of the month of passing of the order under recall and the present application is beyond the above prescribed limit. The appellant seeks to rely on the proposition that period of limitation prescribed under above section is not applicable for restoration of appeal under VSVS Act 2020 and the appellant is to be given liberty to restore the appeal in the event, the ultimate decision on the declaration filed under above scheme was not in favour of appellant. The above proposition finds support from the following decisions:  E. Sankaran v. ITO (2021) 279 Taxman 180 (Mad.)(HC);  Bhimaas Engineering and Projects Pvt Ltd v. Dy CIT (2021) 430 ITR 519 (Mad) (HC);  Ind Mark Properties P.Ltd v. ACIT (2021) 430 ITR 500 (Mad) (HC);  Nannusamy Mohan (HUF) vs ACIT TCA No.372 of 2020 (Mad); 3 | Page  D Kumar vs ITO M.A No.47/Chny/2022 dt: 09.09.2022.” 3. On the other hand, Ld. Sr. DR for the Revenue opposed these submissions and submitted that there is no error in the order of the Tribunal hence, no rectification is required. It is the assessee who had withdrawn its appeal. Now, the assessee should not be permitted to seek restoration of appeal. He further submitted that the present M.A. is time barred by time as there is a delay of 543 days and the delay cannot be condoned. 4. In re-joinder, Ld. Counsel for the assessee submitted that the limitation as prescribed under the Act, would not be applicable in the case of the assessee as the assessee had opted for “Vivad Se Vishwas Scheme, 2020” and in this regard, he has relied upon various case laws. He contended that under the identical facts, the Co-ordinate Bench allowed application filed by assessee and restored the appeal. 5. We have heard both the parties and perused the material available on record. Undisputedly, the appeal of the assessee was dismissed on the basis of the application dated 24.06.2021 made by the assessee, requesting for withdrawal of the appeal. A certificate u/s 5(1) of the “The Direct Tax Vivad Se Vishwas Act, 2020” was also filed algonwith the application. As per this certificate, Form No.3 was issued on 07.04.2021. The assessee failed to comply with the condition for deposit of taxes therefore, the application was dismissed by the Competent Authority. Now the assessee is praying for restoration of appeal. There is a delay in filing the present application by the assessee of more than 543 days. However, the contention of the assessee is that since the Tribunal had dismissed the appeal as withdrawn. In terms of 4 | Page Rule 24 of the Income Tax (Appellate Tribunal Rules, 1963), the appeal may be restored. He further relied upon the decision of Co-ordinate Bench of the Tribunal in the case of Shri D.Kumar vs ITO in M.P.No.47/Chny/2022 in ITA No.2223/Chny/2019 for the Assessment Year 2016-17. The Co-ordinate Bench of the Tribunal in the case of Shri D.Kumar vs ITO (supra) vide order dated 09.09.2022 has observed as under:- 4.1. “However, the miscellaneous petition filed by the assessee on 19.05.2022 before the ITAT is time barred under section 254(2) of the Act, as the Tribunal passed the appeal order on 05.01.2021 and the assessee was required to file the Miscellaneous Petition within six months for recalling the appeal order of the Tribunal. 4.2 However, in the case of M/s. Nannusamy Mohan (HUF) v. ACIT in T.C.A. No. 372 of 2020 vide order dated 16.10.2020, the Hon'ble Madras High Court has observed and held as under: "7. As observed, the assessee is given liberty to restore 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 assessee. If such a prayer is made, the Registry shall entertain the prayer without insisting upon any application to be filed for condonation of delay in restoration of the 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 orders." 4.3 Respectfully following the above of the Hon'ble Jurisdictional High Court, by allowing the petition filed by the assessee, the order of the Tribunal in I.T.A. No.2223/Chny/2019 dated 05.01.2021 is recalled and directed the Registry to post the appeal for hearing on regular 5 | Page course. Accordingly, the miscellaneous petition filed by the assessee is allowed.” 5.1. So far the question of application of provision of Rule 24 of the Income Tax (Appellate Tribunal Rules, 1963) is concerned, the provision applies to ex-parte order but in the case in hand, the assessee itself prayed for withdrawal of its appeal. Reason for withdrawal of appeal was stated to be for opting “Vivad Se Vishwas Scheme, 2020”. The assessee has not stated that how much time it spent and spent in pursuing the matter under “Vivad Se Vishwas Scheme, 2020”. 5.2. Be it may, the Hon’ble High Court of in the case of M/s. Nannusamy Mohan (HUF) v. ACIT in T.C.A. No. 372 of 2020 vide order dated 16.10.2020 had directed the Co-ordinate Bench of this Tribunal for restoration of appeal without insisting upon application for condonation of delay. The Co-ordinate Bench of this Tribunal following the direction of Hon’ble High Court in M.P.No.47/Chny/2022 [In iTA No.2223/Chny/2019] for the Assessment Year 2016-17 in the case of Shri D. Kumar vs ITO vide order dated 09.09.2022 restored the appeal of the assessee. The facts are identical in this case as as well the assessee had opted for “Vivad Se Vishwas Scheme, 2020” and the ultimate decision u/s 4 of the said scheme was not in favour of the assessee. We therefore, following the decision of Co-ordinate Bench of the Tribunal, hereby recall our order dated 29.06.2021 and direct the Registry to fix the appeal for hearing at its original number in due course. The M.A. filed by the assessee is accordingly, allowed. 6 | Page 6. In the result, the Miscellaneous application of the assessee is allowed. Order pronounced in the open court on 09.05.2024. Sd/- Sd/- (PRADIP KUMAR KEDIA) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER * Amit Kumar * Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI