KIRAN KHERIA,NEW DELHI vs. ITO WARD-42(5), NEW DELHI

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ITA 1532/DEL/2022Status: DisposedITAT Delhi07 February 2023AY 2016-174 pages
AI SummaryPartly Allowed

What did the Tribunal hold?

The Tribunal dismissed the penalty appeal as withdrawn due to the assessee opting for the Vivad Se Vishwas Scheme. For the quantum appeal, the Tribunal found the CIT(A) had erred in dismissing the appeal based on a mistaken belief about the Vivad Se Vishwas Scheme and therefore remitted the issue back to the CIT(A) for a decision on merits.

What were the facts?

The assessee appealed against penalty and quantum additions. For the penalty appeal, the assessee had opted for the Vivad Se Vishwas Scheme and the appeal was dismissed as withdrawn. For the quantum appeal, the CIT(A) mistakenly dismissed the appeal believing it was covered by the Vivad Se Vishwas Scheme.

What were the issues?

Whether the CIT(A) erred in dismissing the quantum appeal based on a mistaken belief that the assessee had opted for the Vivad Se Vishwas Scheme, and whether additions made under Section 56(2)(viib) and Section 68 were justified.

Which sections of the Income-tax Act were involved?

Section 271(1)(b),Section 56(2)(viib),Section 68,Section 143(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI BENCH, ‘C’: NEW DELHI

Before: SHRI SHAMIM YAHYA & SHRI ANUBHAV SHARMA

Hearing: 25.01.2023Pronounced: 07.02.2023

ORDER PER SHAMIM YAHYA, AM,

These are appeals by the assessee against two orders of the Ld.

CIT(A) (National Faceless Appeal Centre), New Delhi for the same assessment years.

271(1)(b) of the Act amounting to Rs.10,000/- has been sustained.

3.

At the outset, the ld. Counsel for the assessee submitted that penalty u/s 271(1)(b) was levied in this case amounting to Rs.10,000/- which was confirmed by the Ld. CIT(A). The Ld. Counsel for the assessee submitted that the assessee has opted to settle the dispute through Vivad Se Vishwas Scheme for this purpose. He has referred to necessary Form No.5, dated 27.10.2021 issued by the Income Tax Department.

4.

Considering the above factual circumstances, when the assessee has opted to settle the dispute under Vivad Se Vishwas Scheme and necessary Form 5 issued by the Department, the assessee is entitled to withdraw the appeal, we accept the same and the appeal of the assessee is dismissed as withdrawn.

5. is quantum appeal for the same Assessment Year 2016-17. The grounds of appeal of reads as under:-

1. On the facts and circumstances of the case, the Ld CIT(A) has erred in dismissing the appeal of the appellant by considering the same being covered by declaration under Direct Tax Vivad Se Vishwas Scheme 2020 ignoring the fact that the assessee had never opted for resolution of dispute covered by the present appeal under the above scheme.

2. On the facts and circumstances of the case, the authorities below have clearly erred in not considering the facts of the case in proper prospective and also the submission of the appellant that the additions of Rs.32,00,000/- made by the AO w/s 56(2)(vin)(b) of IT Act were not covered by the ambit of limited scrutiny for which the case was selected and the AO did not comply with the conditions to convert the case from limited scrutiny to complete scrutiny. Therefore, the above addition needs to be deleted.

3. The Ld. CIT(A) has erred both in law and in facts of the case in upholding the addition of Rs.1,52,000/- u/s 68 of IT Act ignoring the fact that the appellant is a individual and not required to maintain books of account and therefore under such circumstances no addition can be made us 68 of IT Act.

4. The Ld CIT(A) has erred both in law and in facts of the case in upholding the addition of Rs. 1,52,000/- u/s 68 of IT Act ignoring the fact that the appellant has duly explained the source of cash deposits. Therefore, the addition made u/s 68 need to be deleted.

5.

Having regard to these facts, the appellate order under appeal needs be quashed and the cost be awarded to the appellant for the agony, cost and inconvenience caused due to misapplication of facts.

6. The appellant craves leave to add, delete, modify / amend the above grounds of appeal with the permission of the Hon'ble appellate authority.”

6.

In this case, in the assessment order framed u/s 143(3) of the Act, income from other sources was added amounting to Rs.33,52,000/-.

7.

Against the above order, the assessee appealed before the Ld. CIT(A).

8.

The Ld. CIT(A) in mistaken belief that the assessee has opted to settle dispute under Vivad Se Vishwas Scheme, treated the appeal as in- fructuous.

9.

Now, the assessee has filed appeal against the above order before us.

10.

We have heard both the parties and perused the records. We find that the Ld. CIT(A) has wrongly dismissed the appeal as in-fructuous by noting that the assessee has opted to settle the dispute under Vivad Se Vishwas Scheme which as per the assessee is incorrect. Therefore, we deem it proper to remit the issue to the file of the Ld. CIT(A) to pass a proper order on merits of the case. The Ld. DR is fairly agreed with the above proposition.

11.

In the result, is dismissed as withdrawn and is allowed for statistical purposes.

Order pronounced in the open court on 07th February, 2023.

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