M/S. GLADIATOR COMMODITIES PVT. LTD.,YELEHANKA vs. DCIT, CENTRAL CIRCLE-4(1), KOLKATA, INDIA

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ITA 1050/KOL/2026Status: DisposedITAT Kolkata02 September 2026AY 2012-138 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that non-compliance with the conditions of the DTVSV Act, leading to the dismissal of the appeal as withdrawn, triggers the revival of the appeal under Section 4(6) of the Act. Therefore, the order of the CIT(A) was set aside, and the appeal was revived.

What were the facts?

The assessee filed an appeal which was dismissed by the CIT(A) as withdrawn due to non-compliance with the Direct Tax Vivad Se Vishwas (DTVSV) Act, 2020, specifically failing to make payment and file Form 4. The assessee argued that non-compliance should lead to the revival of the appeal under Section 4(6) of the DTVSV Act.

What were the issues?

Whether the appeal dismissed as withdrawn under the DTVSV Act should be revived due to non-compliance with its payment and filing requirements, as per Section 4(6) of the Act.

Which sections of the Income-tax Act were involved?

Section 4(2),Section 5(2),Section 4(6),Section 250,Section 143(3),Section 68,Section 14A

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “B” BENCH, KOLKATA

For Appellant: Shri S.K. Tulsiyan &, Ms. Lata Goyal, ARs
For Respondent: Shri Sanjit Kumar Das, DR
Hearing: 25.06.2026Pronounced: 02.09.2026

Per Rajesh Kumar, AM:

This is an appeal preferred by the assessee against the order of the Commissioner of Income-tax (Appeals) Kolkata- 27, (hereinafter referred to as the “Ld. CIT(A)”] dated 06.12.2023 for the AY 2012-13.

2.

At the outset, we note that the appeal of the assessee is barred by limitation by 750 days. At the time of hearing the counsel of the assessee explained the reasons for delay in filing the appeal. The Ld. D.R did raise objections in condoning the delay as the same is not explained with

ITA No.1050/KOL/2026 M/S. GLADIATOR COMMODITIES PVT. LTD.; A.Y. 2012-13 reasons. After hearing the rival contentions and perusing the materials available on record, we find that the delay is for bonafide and genuine reasons and hence, we condone the delay and adjudicate the appeal in the following paras.

3.

The assessee has raised following grounds of appeal:-

“Grounds of appeal: That, on facts and circumstances of the case, the Ld.CIT(A) erred in passing order u/s 250 of the Act on 06.12.2023 considering the appeal as withdrawn on 22.03.2021 as per provision of section 4(2) read with section 5(2) of DTVSV, 2020 in spite of the fact that neither payment was made as per Form 3, nor Form 4 was filed, nor any withdrawal application was filed, therefore the order passed by the Ld.CIT(A) is arbitrary, erroneous and bad in law. That, on facts and circumstances of the case, in case of non-compliance to the provision of section 5(2) of Direct Tax Vivad Se Vishwas Act, 2020, the appeal of the assessee before the Id.CIT(A) shall be revived as per provision of Section 4(6) of the Direct Tax Vivad Se Vishwas Act, 2020. That, on facts and circumstances of the case, the Ld.CIT(A) erred in dismissing the appeal of the assessee without considering the submissions filed by the assessee physically on 22.02.2019 and 25.11.2019 and further through e-proceedings on 02.12.2021 and 21.01.2022. That, on facts and circumstances of the case, the action of the Ld.CIT(A) by dismissing the appeal of the assessee through easy was as per DTVSV Act rather than dealing it on the basis of submissions and paper book of the assessee is in violation to the provision of section DTVSV Act, 2020. That, on facts and circumstances of the case, the addition u/s 68 of the Act of Rs. 9,33,00,000/-on account of share application money received during the year made in the assessment order passed u/s 143(3) of the Act dated 30.03.2015 is devoid of any merits in spite of having on record the replies of shareholder's u/s 133(6) of the Act and having no reference to such replies in the assessment order. That, on facts and circumstances of the case, the disallowance u/s 14A of the Act of Rs.2,18,691/- is not valid as per law since the assessee had earned Nil dividend income during the year. That, the appellant craves leave to amend, alter, modify, substitute, add to, abridge and/or rescind any or all of the above grounds.” 4. The only issue raised by the assessee is against the order of ld. CIT (A), considering the appeal as withdrawn in spite of Page | 2

ITA No.1050/KOL/2026 M/S. GLADIATOR COMMODITIES PVT. LTD.; A.Y. 2012-13 the fact that neither the payment was made as per Form 3, nor Form 4 was filed, nor any withdrawal application was filed, therefore, the order passed by the ld. CIT (A) is arbitrary, erroneous and bad in law.

5.

The facts in brief are that assessee filed its return of income declaring income of Rs. Nil. Thereafter, assessment order u/s 143(3) of the Act dated 30.03.2015 was passed by the Ld. DCIT, Central Circle 4(1), Kolkata, assessing income of ₹9,35,18,690/-. Being aggrieved, the assessee filed an appeal before the Ld. CIT(A) on 05.05.2015 along with detailed submissions and paper book. The Ld. CIT(A) remanded the matter back to the file of the Ld. Assessing Officer. Right after the introduction of the new legislation, DTVSV, the assessee duly filed Form 1,2 on 31.03.2021 and certificate in Form 3 was issued by designated authority on 15.04.2021 under the DTVSV Act, copy of which is enclosed at page 9-21of paper book. The assessee could not make payment and file from 4 as required by the provision of DTVSV Act due to some financial constraints in the company. Thereafter the ld. CIT (A) passed order u/s 250 on 06.12.2023 dismissing the appeal as withdrawn. Immediately, after the impugned order, the assessee filed a rectification petition before the Ld. CIT(A) on 05.02.2024 on the income tax e-portal and also the letter for revival of appeal as per provision of DTVSV on 12.02.2024. The Ld. CIT(A) issued notice of rectification u/s 154 read with section 250 of the Act dated 09.01.2025, against which two detailed replies along with the paper book were filed by the assessee on 15.01.2025. The assessee filed reminders on 26.04.2025 and 11.03.2026 comprising Copies Page | 3

ITA No.1050/KOL/2026 M/S. GLADIATOR COMMODITIES PVT. LTD.; A.Y. 2012-13 of evidences/ submissions made before the Ld.CIT(A), however, the Ld.CIT(A) did not pass order of rectification u/s 154 of the Act reviving appeal of the assessee till date and recently, the department attached the bank account of the assessee for recovery of the demand.

6.

The ld. AR submitted that the order u/s 250 of the Act was passed on 06.12.2023, where the appeal of the assessee has been dismissed as withdrawn by the Ld. CIT(A) applying the provisions of Section 4(2) read with Section 5(2) of Direct Tax Vivad Se Vishwas Act, 2020. The provisions of section 4(6) of the Direct Tax Vivad Se Vishwas Act, 2020 are reproduced as under for ready reference:

"4(6) The declaration under sub-section (1) shall be presumed never to have been made if. (a) any material particular furnished in the declaration is found to be false at any stage. (b) the declarant violates any of the conditions referred to in this Act (c) the declarant acts in any manner which is not in accordance with the undertaking given by him under sub-section (5), and in such cases, all the proceedings and claims which were withdrawn under section 4 and all the consequences under the Income-tax Act against the declarant shall be deemed to have been revived." 7. The provisions of section 4(6) of the Act provide that if the declarant violates any of the conditions referred to in this Act or the declaration or acts in any manner which is not in accordance with the undertaking given under sub-section 5 then all the proceedings and claims which were withdrawn under section 4 and all the consequences under the Income Tax Act against the declaration shall be deemed to have been

ITA No.1050/KOL/2026 M/S. GLADIATOR COMMODITIES PVT. LTD.; A.Y. 2012-13 revived. Therefore, the AR prayed for the revival of the appeal.

8.

The ld. DR supported the order of the authorities below.

9.

Aggrieved, assessee preferred the appeal before the Tribunal.

10.

After hearing the rival contentions and perusing the materials available on record, we find that as assessee has not fulfilled the conditions under DTVSV, therefore, the assessee prayed before us that the appeal dismissed by the ld. CIT (A) which is under challenge before us may kindly be revived. In the present case of the assessee, the declaration was filed under Direct Tax Vivad se Vishwas Act in Form 1 & 2 on 31.03.2021. Form 3 was issued on 15.04.2021 determining amount of tax payable under Direct Tax Vivad Se Vishwas Scheme of Rs.2,97,68,454/-. The said tax could not be paid by the assessee within the time limit provided under the said scheme due to lack of funds with the assessee company. Therefore, the assessee could not comply to the provision of section 5(2) of the Act which provides for making of payment of tax arrears by Declarant and Filing Form 4 before the designated authority. The assessee also failed to comply to the provisions of section 4(3) of the Act. In our opinion, the case of the assessee falls under the provisions of section 4(6) of the Act and therefore the appeal withdrawn needs to be revived. The case of the assessee is squarely covered by the decision of Hon'ble J&K High Court in case of Vidya Sagar Sharma v/s UOI reported in [2026] 184 taxmann.com 44, wherein the Hon'ble Court held as under:-

ITA No.1050/KOL/2026 M/S. GLADIATOR COMMODITIES PVT. LTD.; A.Y. 2012-13 “18. Section 4(6) of the Act of 2020, as extracted above, creates a legal fiction that a declaration under sub-section (1) is presumed never to have been made if the declarant fails to satisfy the statutory conditions. Specifically, if a declarant violates any condition of the Act or fails to act in accordance with the undertaking given under sub-section (5) of Section 4 of the Act of 2020, all the proceedings and the claims withdrawn under Section 4 of the Act of 2020 along and the consequences against the declarant under the Income Tax Act are deemed to have been revived by operation of law. 19. It is undisputed that the petitioner failed to comply with the mandate of the Act by not depositing the amount determined in the Form-3. The petitioner contends that this violation triggers the consequences under Section 4(6) of the Act of 2020, resulting in the automatic revival of his Revision Petitions. Conversely, the respondents argue that the phrase 'all the proceedings and the claims' followed by 'all the consequences under the Income Tax Act' refers exclusively to the proceedings or the claims initiated by the Department. 20. A plain reading of Section 4(6) of the Act of 2020 refutes this restrictive interpretation. The provision encompasses 'all the proceedings and claims' without distinction; it does not differentiate between those initiated by the Assessee and those by the Income Tax Authority. Had the Legislature intended to limit the scope of 'revival' solely to Departmental actions, it would have employed specific qualifying language to that effect. 21. Furthermore, the statutory definition of 'appellant' under the Act is expansive, including any person who has filed an appeal, writ petition, SLP, or an application for Revision under Section 264 of the Income Tax Act, whether filed by the individual or the Income Tax Authority. In the present case, the petitioner had invoked the Revision jurisdiction under Section 264 of the Income Tax Act. Consequently, we are of the considered view that the expression 'all the proceedings and claims' withdrawn under Section 4 of the Act of 2020 must include those filed by the Assessee also. To hold otherwise would be to read a limitation into the statute that does not exist. 22. Applying the principle of harmonious construction, we are of the considered opinion that the expression 'consequences under the Income Tax Act against the declarant' necessarily implies that any adverse orders previously passed against the declarant-assessee are also revived. This ensures that upon the failure of the declaration, the parties are restored to their original positions, including the petitioner's right to pursue his challenge against such orders. 23. Accordingly, we are of the considered view that by virtue of Section 4(6) of the Act of 2020, once the petitioner failed to comply with the statutory mandate within the stipulated time, the Revision Petitions stood automatically revived by operation of law. The parties are, therefore, restored to the same legal position they occupied prior to the filing of the declaration. 24. Authorities administering a beneficial scheme designed for the resolution of tax disputes are expected to adopt a purposive approach that furthers its Page | 6

ITA No.1050/KOL/2026 M/S. GLADIATOR COMMODITIES PVT. LTD.; A.Y. 2012-13 underlying objectives, particularly where an assessee demonstrates a clear intent to settle. In the present case, we find that the respondents proceeded on the erroneous premise that the petitioner was ineligible under the DTVSV Scheme, 2024, on the ground that no Revision Petitions were pending on the relevant date. This conclusion was reached in complete disregard of the statutory mandate under Section 4(6) of the Act of 2020, which provides for the automatic revival of such proceedings upon a default. Consequently, the impugned order dated 10.01.2025 suffers from a manifest error of law and cannot be sustained. The respondents are correct in submitting that the petitioner in the Form-1 submitted to avail the benefit of DTVSV Scheme of 2024 has again committed the same mistake, which he committed while applying under the Act of 2020. 25. In view of the foregoing discussion and findings, the impugned order dated 10.01.2025 is set aside. The petitioner shall approach the respondents within a period of thirty days from today for completion of all the requisite formalities for availing the benefit of the DTVSV Scheme, 2024, in respect of both the tax arrears and the penalty imposed. Upon such approach, the respondents shall permit the petitioner to do the needful within the aforesaid period. After the petitioner completes the necessary formalities within the stipulated time, the respondents shall grant the benefit of the DTVSV Scheme, 2024 to the petitioner within a further period of thirty days thereafter. In the event the petitioner fails to approach the respondents within the stipulated period or fails to comply with the mandate for grant of benefit within the time prescribed, the respondents shall be at liberty to proceed against the petitioner in accordance with law.” 11. Considering the facts of the present case and the decision relied upon by the Hon'ble J &K High Court, we set aside the order of CIT (A) and revive the appeal and direct the ld. CITG(A) to decide the same after affording reasonable opportunity of hearing to the assessee.

12.

In the result, the appeal of the assessee is allowed.

Order pronounced on 02.09.2026.

Sd/- Sd/- (PRADIP KUMAR CHOUBEY) (RAJESH KUMAR) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Kolkata, Dated: 02.09.2026 Sudip Sarkar, Sr.PS Page | 7

ITA No.1050/KOL/2026 M/S. GLADIATOR COMMODITIES PVT. LTD.; A.Y. 2012-13 Copy of the Order forwarded to: 1. The Appellant 2. The Respondent 3. CIT DR, ITAT, 4. 5. Guard file. BY ORDER, True Copy//

Dy. Registrar Income Tax Appellate Tribunal, Kolkata

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