SARAVANA KUMAR N, CHENNAI V. ITO NON CORPORATE WARD 18 (1), CHENNAI

MA 43/CHNY/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9632 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 1 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 08-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS R ANITA
• Assessee Lawyers: BABU PERAM
• Keywords: Reasonable cause; Competent authority; Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , D B ENCH, CHENNAI . , . , & BEFORE SHRI V.DURGA RAO , JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ./ I.T.A.NO.1558/CHNY/2018 & MISC.PETITION NO.43/CHNY/2019 ( / ASSESSMENT YEAR: 2011-12) MR.N.SARAVANAKUMAR, PLOT NO.410, 2 ND MAIN ROAD, ASHTALAKSHMI NAGAR, ALAPAKKAM, CHENNAI -600 116. VS THE INCOME TAX OFFICER , NON-CORPORATE WARD-18(1) CHENNAI. PAN: ADWPN 9638P ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. BABU PERAM , C.A /RESPONDENT BY : MRS. R.ANITA, JCIT /DATE OF HEARING : 10.03.2021 /DATE OF PRONOUNCEMENT : 10.03.2021 / O R D E R PER G.MANJUNATHA, AM: THIS MISCELLANEOUS PETITION IS FILED BY THE ASSESSE E PRAYING FOR RECALLING ORDER OF THE TRIBUNAL DATED 31.10.2018 IN ITA NO.1558/CHNY/2018 FOR THE ASSESSMENT YEAR 2011- 12 PASSED EX PARTE FOR NON-APPEARANCE AND PETITION FIL ED FOR CONDONATION OF DELAY WAS NOT IN LINE WITH NOTIFIED DELAY OF 361 DAYS. 2 ITA NO.1558 /CHNY/2018 & M.P. NO.43/CHNY/2019 2. THE LEARNED A.R FOR THE ASSESSEE SUBMITTED TH AT ALL THE NOTICES WERE SENT TO OLD ADDRESS OF THE ASSESSEE A ND THEREFORE, THEY COULD NOT ATTEND THE HEARING. NOW , THE ASSESSEE WANTS TO UTILIZE THE DIRECT TAXES VIVAD SE VISHWAS SCHEME, 2020 TO SETTLE PENDING DISPUTE RELATING TO DIRECT TAXES AND IN THIS REGARD FORM NO 1, 2 AND 3 FROM T HE DESIGNATED AUTHORITY. THEREFORE, LEARNED AR SUBMITT ED THAT IN THE INTEREST OF JUSTICE, EX-PARTE ORDER DATED 31.1 0.2018 PASSED BY THIS TRIBUNAL MAYBE RECALLED AND DELAY IN FILING OF APPEAL FOR 361 DAYS MAY BE CONDONED AND THE APPEAL MAY BE DIS MISSED TO ENABLE THE ASSESSEE TO UTILIZE VIVAD SE VISHWAS SCHEME, 2020 TO SETTLE PENDING DISPUTE. 3. AFTER HEARING BOTH THE PARTIES, WE RECALL THE TR IBUNAL ORDER DATED 31.10.2018 PASSED IN ITA NO.1558/CHNY/2018, AS THE ASSESSEE INTENDS TO AVAIL BENEFIT OF VSVS SCHEME, 2020 AND THUS, APPEAL ITSELF IS TAKEN UP FOR DISPOSAL BY ALL OWING MISCELLANEOUS PETITION FILED BY THE ASSESSEE. 4. FURTHER, WE ALSO FIND THAT APPEAL FILED BY ASSE SSEE IS BARRED BY LIMITATION FOR WHICH NECESSARY PETITIO N FOR 3 ITA NO.1558 /CHNY/2018 & M.P. NO.43/CHNY/2019 CONDONATION OF DELAY ALONG WITH AFFIDAVIT EXPLAIN ING THE REASONS FOR THE DELAY HAS BEEN FILED. THE LEARN ED COUNSEL SUBMITTED THAT ASSESSEE COULD NOT FILE APPEAL WITH IN THE TIME ALLOWED UNDER THE ACT, THEREFORE DELAY MAY BE CONDO NED. HAVING HEARD BOTH SIDES AND CONSIDERED THE PETITION FILED BY THE ASSESSEE FOR CONDONATION OF DELAY, WE ARE OF THE CO NSIDERED VIEW THAT REASONS GIVEN BY ASSESSEE FOR NOT FILIN G THE APPEAL WITHIN THE TIME ALLOWED UNDER THE ACT COMES UNDER REASONABLE CAUSE AS PROVIDED UNDER THE ACT FOR CONDONATION O F DELAY AND HENCE, DELAY OF 361 DAYS IN FILING OF ABOVE APPEAL IS CONDONED AND APPEAL FILED BY THE ASSESSEE IS ADMITTED FOR A DJUDICATION. 4. WE HAVE HEARD THE COUNSELS FOR THE ASSESSEES AN D THE LD. DR AND ALSO PERUSED THE MATERIAL AVAILABLE ON R ECORD. AT THE TIME OF HEARING, LEARNED COUNSELS FOR THE ASSESS EES HAVE MADE A STATEMENT AT BAR THAT THE ASSESSEES WANTS TO UTILIZE THE DIRECT TAXES VIVAD SE VISHWAS SCHEME, 2020 TO SETTLE PENDING DISPUTE RELATING TO DIRECT TAXES AND IN THIS REGARD SOME OF ASSESSEES HAVE FILED FORM NO 1 AND 2 AND A WAITING FORM NO. 3 FROM THE DESIGNATED AUTHORITY. IN SOME C ASES, THE ASSESSEES HAVE RECEIVED FORM NO. 3 FROM THE DESIGN ATED AUTHORITY AND IN SOME CASES, THE ASSESSEE HAVE FILE D LETTER AND 4 ITA NO.1558 /CHNY/2018 & M.P. NO.43/CHNY/2019 EXPRESSED THEIR WILLINGNESS TO FILE FORM NO. 1 AND 2 BEFORE THE DESIGNATED AUTHORITY. 5. THE BENCH HAS CONSIDERED RIVAL CONTENTIONS OF BO TH SIDES AND AFTER HEARING BOTH PARTIES, WE FOUND THAT THE GOVERNMENT OF INDIA HAS ANNOUNCED IN THE BUDGET, 2020, A DIR ECT TAXES VIVAD SE VISHWAS SCHEME, 2020 TO SETTLE PENDING DISPUTE RELATING TO DIRECT TAXES AT VARIOUS APPELLATE FOR UMS INCLUDING THE FIRST APPELLATE AUTHORITY, TRIBUNAL, HIGH COUR T AND SUPREME COURT. IN THIS REGARD, THE SCHEME HAS BEEN NOTIFIED ON 17 TH MARCH, 2020 AND BECAME DIRECT TAXES VIVAD SE VISHWAS ACT, 2020. AS PER THE SAID SCHEME, ASSESSE ES ARE ALLOWED TO SETTLE DIRECT TAX DISPUTE IN A MANNER AN D PROCEDURE PRESCRIBED THEREIN BY FILING NECESSARY DECLARATION AND UNDERTAKING. THE SCHEME HAS ALSO SPECIFIED THE AMOU NT OF TAXES, INTEREST, AND PENALTY, IF ANY PAYABLE UNDER THE ACT. IF AN ASSESSEE FILED A DECLARATION AND PAY SPECIFIED TAXES AS PER THE SCHEME AND WITHDRAW THE APPEAL PENDING BEFOR E THE APPELLATE AUTHORITIES, THE DESIGNATED AUTHORITY S HALL PASS AN ORDER IN FORM 5 CONFIRMING PAYMENT MADE UNDER THE SCHEME AND GRANT IMMUNITY FROM PENALTY AND PROSECUTION. 5 ITA NO.1558 /CHNY/2018 & M.P. NO.43/CHNY/2019 6. IN THESE PRESENT APPEALS, SOME ASSESSEES HAVE F ILED DECLARATION IN FORM NO.1 ALONG WITH UNDERTAKING WAI VING RIGHTS FOR ANY REMEDY IN FORM NO. 2 TO THE DESIGNATED AUTH ORITY AND HAS ALSO RECEIVED FORM 3. IN SOME CASES, FORM NO 1 AND 2 HAS BEEN FILED AND AWAITING FORM NO. 3 FROM THE DES IGNATED AUTHORITY AND IN SOME CASES, THE ASSESSEES HAVE EX PRESSED THEIR WILLINGNESS TO FILE FORM NO. 1 AND 2 AND SETT LE THEIR DISPUTE UNDER THE SCHEME. THEREFORE, ONCE THE ASSESSEES IN TEND TO FILE A DECLARATION IN FORM NO.1 ALONG WITH UNDERTAKING A ND EXPRESSED THEIR WILLINGNESS TO SETTLE PENDING DISPU TES REGARDING DIRECT TAXES, THEN THERE IS NO POINT IN KEEPING APP EAL FILED BY THE ASSESSEES. WE, FURTHER NOTED THAT RECENTLY THE H ONBLE JURISDICTIONAL HIGH COURT OF MADRAS HAS CONSIDERED AN IDENTICAL APPLICATION FILED BY AN ASSESSEE IN THE CASE O F M/S. NANNUSAMY MOHAN (HUF) VS. ACIT IN T.C.A NO.372 OF 2 020 FOR AVAILING THE BENEFIT OF VIVAD SE VISHWAS SCH EME, 2020, WHERE THE HONBLE HIGH COURT HAS DISMISSED THE AP PEAL FILED BY THE PETITIONER AS WITHDRAWN, BUT ALLOWED LIBERTY TO THE ASSESSEE TO RESTORE THE APPEAL IN THE EVENT THE D ESIGNATED AUTHORITY FOR ANY REASON REJECT APPLICATION FILED BY THE ASSESSEE UNDER SECTION 4 OF THE ACT. THE RELEVANT PORTIONS O F THE 6 ITA NO.1558 /CHNY/2018 & M.P. NO.43/CHNY/2019 OBSERVATIONS OF THE HONBLE HIGH COURT OF MADRAS VI DE ORDER DATED 16.10.2020 ARE EXTRACTED AS UNDER:- 2. WE HAVE HEARD MR.M.P.SENTHIL KUMAR, LEARNED C OUNSEL APPEARING FOR THE APPELLANT/ASSESSEE AND MR.T.R. SENTHIL KUMAR, LEARNED SENIOR STANDING COUNSEL AND MS. K.G.USHA RANI, LEARNED COUNSEL FOR THE RESPONDENT/REVENUE. 3. THE LEARNED COUNSEL FOR THE APPELLANT / ASSESSEE , ON INSTRUCTIONS, SUBMITTED THAT THE APPELLANT / ASSESS EE INTENDS TO AVAIL THE BENEFIT OF VIVAD SE VISHWAS SCHEME ( VVS SCHEME' FOR BREVITY) AND IN THIS REGARD, THE ASSESSEE IS TA KING STEPS TO FILE THE APPLICATION / DECLARATION IN FORM NO. 1. 4. IT MAY NOT BE NECESSARY FOR THIS COURT TO DECIDE THE SUBSTANTIAL QUESTIONS OF LAW FRAMED FOR CONSIDERATI ON ON ACCOUNT OF CERTAIN SUBSEQUENT DEVELOPMENTS. THE GOV ERNMENT OF INDIA ENACTED THE DIRECT TAX VIVAD SE VISHWAS AC T, 2020 (ACT 3 OF 2020) TO PROVIDE FOR RESOLUTION OF DISPUTED TA X AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO. THE ACT OF THE PARLIAMENT RECEIVED THE ASSENT OF THE PRESIDENT ON 17TH MARCH 2020 AND PUBLISHED IN THE GAZETTE OF INDIA ON 17TH MARCH 2020. 5. IN TERMS OF THE SAID ACT, THE ASSESSEE HAS BEEN GIVEN AN OPTION TO PUT AN END TO THE TAX DISPUTES, WHICH MAY BE PENDING AT DIFFERENT LEVELS EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL OR BEFORE THE HIGH COURT OR BEF ORE THE HON'BLE SUPREME COURT OF INDIA. UNDER SECTION 2(J) 'DISPUTED TAX' HAS BEEN DEFINED. IN TERMS OF SECTION 3, WHERE A DECLARANT MEANS A PERSON, WHO FILES A DECLARATION UNDER SECTI ON 4 ON OR BEFORE THE LAST DATE FILES A DECLARATION TO THE DES IGNATED AUTHORITY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4 IN R ESPECT OF TAX ARREARS, THEN, NOTWITHSTANDING ANYTHING CONTAINED I N THE INCOME TAX ACT OR ANY OTHER LAW FOR THE TIME BEING IN FORC E, THE AMOUNT PAYABLE BY THE DECLARANT SHALL BE DETERMINED IN TER MS OF SECTION 3(A-C) THEREUNDER. 6. THE FIRST PROVISO TO SECTION 3 STATES THAT IN C ASE WHERE AN APPEAL OR WRIT PETITION OR SPECIAL LEAVE PETITION I S FILED BY THE INCOME TAX AUTHORITY ON ANY ISSUE BEFORE THE APPELL ATE FORUM, THE AMOUNT PAYABLE SHALL BE ONE-HALF OF THE AMOUNT IN THE TABLE STIPULATED IN SECTION 3 CALCULATED ON SUCH ISSUE, I N SUCH A MANNER AS MAY BE PRESCRIBED. THE SECOND PROVISO DEA LS WITH THE CASES, WHERE THE MATTER IS BEFORE THE COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RESOLUTION PANEL. THE THIRD PROV ISO DEALS WITH 7 ITA NO.1558 /CHNY/2018 & M.P. NO.43/CHNY/2019 CASES, WHERE THE ISSUE IS PENDING BEFORE THE INCOME TAX APPELLATE TRIBUNAL. THE FILING OF THE DECLARATION IS AS PER SECTION 4 OF THE ACT AND THE PARTICULARS TO BE FURNISHED AR E ALSO MENTIONED IN THE SUB SECTIONS OF SECTION 4. SECTION 5 OF THE ACT DEALS WITH THE TIME AND MANNER OF THE PAYMENT AND S ECTION 6 DEALS WITH IMMUNITY FROM INITIATION OF PROCEEDINGS IN RESPECT OF OFFENCE AND IMPOSITION OF PENALTY IN CERTAIN CASES. SECTION 9 OF THE ACT DEALS WITH CASES, WHERE THE ACT 3 OF 2020 W ILL NOT BE APPLICABLE. 7. AS OBSERVED, THE ASSESSEE IS GIVEN LIBERTY TO RE STORE THIS APPEAL IN THE EVENT THE ULTIMATE DECISION TO BE TAK EN ON THE DECLARATION TO BE FILED BY THE ASSESSEE UNDER SECTI ON 4 OF THE SAID ACT IS NOT IN FAVOUR OF THE ASSESSEE. IF SUCH A PRAYER IS MADE, THE REGISTRY SHALL ENTERTAIN THE PRAYER WITHO UT INSISTING UPON ANY APPLICATION TO BE FILED FOR CONDONATION OF DELAY IN RESTORATION OF THE APPEAL AND ON SUCH REQUEST MA DE BY THE ASSESSEE BY FILING A MISCELLANEOUS PETITION FOR RES TORATION, THE REGISTRY SHALL PLACE SUCH PETITION BEFORE THE DIVIS ION BENCH FOR ORDERS. 8. IN THE LIGHT OF THE ABOVE, WE DIRECT THE APPE LLANT / ASSESSEE TO FILE THE FORM NO.1 ON OR BEFORE 20.11.2020 AND T HE COMPETENT AUTHORITY SHALL PROCESS THE APPLICATION / DECLARATI ON IN ACCORDANCE WITH THE ACT AND PASS APPROPRIATE ORDERS AS EXPEDIT IOUSLY AS POSSIBLE PREFERABLY WITHIN A PERIOD OF SIX (6) WEE KS FROM THE DATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FOR M. 7. IN THE LIGHT OF THE ABOVE DECISION OF THE HONBL E HIGH COURT OF MADRAS, AND BY TAKING NOTE OF THE FACT T HAT SOME ASSESSEES HAVE ALREADY FILED DECLARATION IN FOR M NO.1 ALONG WITH FORM NO.2 TO THE DESIGNATED AUTHORITY AND RE CEIVED FORM 3 AND SOME ASSESSEES HAD ALREADY FILED FORM NO. 1 & 2 AND AWAITING FORM NO. 3 FROM THE DESIGNATED AUTHORI TY AND ALSO THE FACT THAT REMAINING ASSESSEES ARE WILLING TO F ILE FORM NO. 1 AND 2 WITHIN THE DUE DATE PRESCRIBED FOR THIS PURPO SE, WE 8 ITA NO.1558 /CHNY/2018 & M.P. NO.43/CHNY/2019 DISMISS THE APPEALS FILED BY THE ASSESSEES AS W ITHDRAWN. HOWEVER, A LIBERTY IS GIVEN TO THE ASSESSEES TO R ESTORE THE APPEALS, IN THE EVENT OF THE DESIGNATED AUTHORIT Y, FOR ANY REASON REJECT THE APPLICATION FILED BY THE ASSESSEE UNDER SECTION 4 OF THE SAID ACT. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISMISSED AS WITHDRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH MARCH, 2021 SD/- SD/- ( . ) ( . ) ( V.DURGA RAO ) ( G.MANJUNATHA ) ' $ / JUDICIAL MEMBER $ / ACCOUNTANT MEMBER ' /CHENNAI, ' /DATED 10 TH MARCH , 2021 DS )* +* /COPY TO: 1. APPELLANT 2. RESPONDENT 3. , () /CIT(A) 4. , /CIT 5. * 1 /DR 6. /GF .