Shri Krushnakant Bhailalbhai Patel, Kheda V. ITO, Ward-2, , Nadiad

MA 79/AHD/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3711 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-06-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 24-02-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR SHYAM PRASAD
• Section: 254(2)

Judgement Text

, SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT) BEFORE SHRI RAJPAL YADAV, VICE-PRESIDENT MISC.APPLICATION NO.79/AHD/2020 IN ITA NO.2329/AHD/2017 / ASSTT.YEAR : 2010-11 KRUSHNAKANT B. PATEL NAGARWADA NR.GUJARAT SCHOOL MAHUDHA, DIST. KHEDA. PAN : AWKPP 7005 Q VS. ITO, WARD - 2 NADIAD. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : SHRI SAMIR VORA, AR REVENUE BY : DR.SHYAM PRASAD, SR.DR / DATE OF HEARING : 04/06/2021 / DATE OF PRONOUNCEMENT: 08/06/2021 !'/ O R D E R PRESENT MA HAS BEEN FILED BY THE ASSESSEE FOR RECAL L OF THE TRIBUNALS ORDER DATED 15.11.2019 PASSED IN ITA NO. 2329/AHD/2017. 2. THE APPEAL OF THE ASSESSEE WAS LISTED FOR HEARIN G ON 14.11.2019. THE ASSESSEE HAS FILED WRITTEN SUBMISSIONS, AND AFT ER GOING THROUGH THE WRITTEN SUBMISSIONS, THE APPEAL OF THE ASSESSEE WAS DISMISSED ON MERIT. THEREAFTER, THE ASSESSEE HAS FILED AN APPLI CATION UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 ON 24.2.2020. T HE LD.COUNSEL FOR THE ASSESSEE ON 20.3.2020 CONTENDED THAT THE ASSESS EE INTENDS TO AVAIL BENEFIT OF THE SCHEME LODGED BY THE GOVERNMENT, AND THEREFORE, THE ORDER OF THE TRIBUNAL BE RECALLED. HOWEVER, THE BE NCH HAS RESERVATION ON THE GROUND THAT THE APPEAL WAS NOT DISMISSED FOR WANT OF PROSECUTION, RATHER IT WAS DISMISSED ON MERIT, AND THUS, NO VALID MA NO.79/AHD/2020 2 APPEAL WAS PENDING ON THE DATE WHEN THE SCHEME WAS MADE APPLICABLE. THE BENCH HAS MADE ENTRY TO THIS EFFEC T VIDE ORDER SHEET ENTRY DATED 20.3.2020. THEREAFTER, THE HEARING WAS ADJOURNED ON MANY OCCASIONS. ON 25.3.2021, THE ASSESSEE HAS FIL ED AN APPLICATION FOR WITHDRAWAL OF THIS MA. HE HAS TITLED THE APPLI CATION REQUEST FOR WITHDRAWAL OF APPEAL A.Y.2010-11 DIRECT TAX VIVAD SE VISHWAS ACT 2020. THE LD.COUNSEL FOR THE ASSESSEE HAS FIL ED COPY OF FORM NO.3 AS WELL AS COPY OF FORM NO.5. IN THE COPY OF FORM NO.3 OF THE SCHEME, THE ASSESSEE HAS SHOWN AS IF ITS APPEAL I.E. ITA NO .2329/AHD/2020 WAS PENDING AS ON 31.3.2020. THIS IS FACTUALLY INCORRE CT STATEMENT. SOMEHOW, IT APPEARS THAT ADJUDICATOR UNDER THE SCHE ME FAILED TO TAKE NOTE OF THIS ASPECT WHILE ACCEPTING AND PROCESSING THE CASE OF THE ASSESSEE, AND ISSUED FORM NO.5 FOR FULL AND FINAL S ETTLEMENT OF TAX ARREARS. COPY OF THIS FORM HAS BEEN PLACED BEFORE ME. 3. WITH THE ABOVE FACTUAL BACKGROUND, I AM OF THE V IEW THAT NO APPEAL WAS PENDING AS ON 31.1.2020. THE APPEAL HAS ALREADY BEEN DECIDED ON 15.11.2019; NO APPLICATION FOR RECALL OF THE ORDER WAS PENDING. THIS APPLICATION WAS FILED IN THE MONTH O F FEBRUARY, 2020, AND APPEAL HAS NEVER BEEN RESTORED TO ITS ORIGINAL NUMBER. THIS APPLICATION WAS TO BE DECIDED BY THE ITAT ON MERIT, BUT NOW THE ASSESSEE INTENDS TO WITHDRAW THIS APPLICATION. HE HAS WRONGLY MENTIONED IN THE TITLE THAT HE WISHED TO WITHDRAW T HE APPEAL. THERE IS NO APPEAL PENDING BEFORE THE TRIBUNAL. IT IS AN APP LICATION OF THE ASSESSEE, AND IF HE WISHED TO WITHDRAW THE SAME, TH EN THE TRIBUNAL HAS NO OBJECTION ON SUCH WITHDRAWAL. IT IS THE REVENUE , IF INTENDS TO RESOLVE THE TAX DISPUTE BETWEEN THE ASSESSEE AND TH E REVENUE, IN SPITE OF NON-FULFILLING OF THE CONDITIONS ENUMERATED IN T HE SCHEME. THE MA NO.79/AHD/2020 3 TRIBUNAL IS NOBODY TO INTERFERE OR NO AUTHORITY TO INTERFERE WITH THE SETTLEMENT. WITH THE ABOVE OBSERVATIONS, THE APPLI CATION OF THE ASSESSEE IS ALLOWED, AND THE MA NO.79/AHD/2020 IS D ISMISSED AS WITHDRAWN. 4. IN THE RESULT, APPLICATION OF THE ASSESSEE IS AL LOWED AND MA IS DISMISSED AS WITHDRAWN. ORDER PRONOUNCED IN THE COURT ON 8 TH JUNE, 2021 AT AHMEDABAD. S D / - (RAJPAL YADAV) VICE-PRESIDENT AHMEDABAD; DATED 08/06/2021