MALLIKARJUN BASAWANAPPA PANDERAGERA,MUMBAI vs. INCOME TAX OFFICER WARD 28(2)(1), MUMBAI

Learned Counsel for the assessee, at the outset, submitted that the appeal of the assessee was dismissed by the Ld. CIT(A) on the ground that the assessee opted under Direct Tax Vivad Se Vishwas (DTVSV) Scheme and therefore the appeal of the assessee became infructuous.

Ld. Counsel for the assessee submitted that the Ld. CIT(A) is under mistaken impression that the assessee had adopted under Vivad Se Vishwas and settled the disputes in respect of quantum additions. Ld. Counsel submitted that what was settled under Vivad Se Vishwas scheme was the penalty levied u/s 271B of the Act and not the additions made in quantum proceedings and therefore the said observations of the Ld. CIT(A) while dismissing the appeal is factually not correct.

Ld. Counsel further submitted that the present appeal before the Tribunal is delayed by 1651 days. Ld. Counsel referring to the affidavit and the petition for condonation of delay submitted that the assessee filed a petition u/s 154 of the Act before the Ld. CIT(A) against the order dated 28.05.2021 passed by the Ld. CIT(A) in dismissing the appeal of the Act explaining that the assessee did not opt under Vivad Se Vishwas Scheme for settling the disputes in respect of quantum additions made in the assessment proceedings. The assessee also filed reminder on 22.02.2024 about the rectification petition pending before the Ld. CIT(A). A grievance application was also filed requesting for expeditious disposal of rectification application pending before the Ld. CIT(A). However, since the Ld. CIT(A) is not disposing of the rectification application the assessee was advised to file appeal and accordingly the assessee filed an appeal before the Tribunal with the delay of 1651 days. Ld. Counsel for the assessee submitted that the assessee was under the bonafide belief that since he was perusing the alternate remedy under 154 of the Act, the assessee was not required to file an appeal. Ld. Counsel submitted that the delay in filing the appeal before the Tribunal is neither willful nor wanton but for the circumstances explained above. Therefore, Ld. Counsel requested that the delay and filing be condoned.

Considering the rival submissions and perusing the sequence of events and the material placed before us including the petition for condonation of delay and the rectification application filed by the the assessee before the Ld. CIT(A), the grievance petition before the Ld. CIT(A) and the reminder to the Ld. CIT(A) about the pending rectification application and the bonafides of the assessee, we are of the view that the assessee had reasonable cause in not filing the appeal in time. Thus, delay of 1651 days in filing the appeal is condoned and appeal is admitted for adjudication.

On perusal of the record, we notice that the assessee opted under Vivad Se Vishwas scheme to settle the penalty levied under Section 271B of the Act and not the quantum appeal pending against various additions/disallowances made by the assessing Officer. Thus, we set- aside the order of the Ld. CIT(A) and restore this appeal to the file of the Ld. CIT(A) to dispose of appeal on merits after providing adequate opportunity to the assessee.

In the result appeal of the assessee is allowed for statistical purposes.