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Income Tax Appellate Tribunal, DELHI BENCH “G”: NEW DELHI
Before: SHRI NARENDRA KUMAR BILLAIYA & SHRI KUL BHARAT
O R D E R PER KUL BHARAT, JM:
This appeal, by the assessee, is directed against the order of the learned Commissioner of Income-tax (Appeals), National Faceless Assessment Centre (NFAC), Delhi, dated 11.05.2022, pertaining to the assessment year 2016-17. The assessee has raised following grounds of appeal:
“1. 1. That the appellant prays that the order passed is totally void, illegal and bad in law. 2. That the appellant prays that the penalty proceedings are in itself void illegal and bad in law. 2. That the appellant prays that assessee did not get proper opportunity of being heard and therefore the order passed by Ld. AO for imposition of penalty is totally against the principles of natural justice.
That the appellant prays that since the assessee opted for Vivad Se Viswas Scheme, the imposition of penalty by Ld. AO is totally illegal, void and bad in law.
3. That the appellant prays that the stand of Ld. CIT(A) that the appellant has no right to appeal is bad in law, totally unjust and illegal.
4. That the appellant prays that Ld. CIT(A) erred in confirming the penalty imposed by Ld. AO as assessee has opted for VSVS, and paid the tax and therefore imposition of any penalty is bad in law.”
The facts giving rise to the present appeal are that in this case the assessee had filed its return of income electronically declaring income of Rs. 80,05,710/-, which was processed u/s 143(1) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”). Thereafter, the case was taken up for limited scrutiny. The Assessing Officer while framing the assessment u/s 143(3) of the Act, assessed the assessee’s income at Rs. 8,35,35,710/- against the declared income of Rs. 80,05,710/-. Thus, a sum of Rs. 7,55,30,000/- was added into the income the assessee. The Assessing Officer also initiated penalty proceedings u/s 271(1)(c) of the Act, which culminated into imposition of impugned penalty amounting to Rs. 2,49,72,484/-. Aggrieved against this the assessee preferred appeal before the learned CIT(Appeals), who after considering the submissions of the assessee and considering the fact that the assessee had opted for Vivad Se Vishwas Scheme, 2020, dismissed the appeal of the assessee. Aggrieved against this, the assessee has preferred appeal before this Tribunal.
At the time of hearing none attended the proceedings on behalf of the assessee. Therefore, the appeal is taken up for hearing in the absence of the assessee and is being decided on the basis of the material available on record.
The learned DR supported the orders of the authorities below.
We have heard the learned DR and gone through the material available on record. On perusal of the grounds of appeal
it is seen that the assessee had opted for Vivad Se Vishwas Scheme. The learned CIT(Appeals) also records the same in para 2 that Form-5 u/s 5(2) read with section 6 of the Direct Tax Vivad Se Vishwas Act, 2020 (3 of 2020) is claimed/stated to have been issued. However, Form no. 5 has not been filed by the assessee. We, therefore, considering the fact that the assessee has opted for Vivad Se Vishwas Scheme, set aside the impugned order and restore the issue of penalty to the Assessing Officer, who would verify whether the assessee has settled the tax demand under Vivad Se Vishwas Scheme. If Form no. 5 has been issued, the Assessing Officer would delete the penalty as per the Vivad Se Vishwas Scheme. Grounds are allowed for statistical purposes.
8. Appeal of the assessee is allowed for statistical purposes.
Order pronounced in open court during the course of hearing on 02.01. 2023.