M/S. KUSVIN VYAPAAR PVT. LTD.,KOLKATA vs. A.C.I.T., CENTRAL CIRCLE - 3(1), KOLKATA, KOLKATA

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ITSSA 66/KOL/2022Status: DisposedITAT Kolkata17 February 2023AY 2014-20153 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the Ld. CIT(A) had dismissed the assessee's appeal based on a wrong appreciation of facts, specifically the erroneous belief that the assessee had opted for the Vivad-Se-Vishwas Scheme. The Tribunal found that the Ld. CIT(A)'s observation that the appellant opted for the scheme and that the Principal CIT certified full and final payment in terms of Form No. 5, leading to the appeal being treated as infructuous as per Section 4(2) of the Direct Tax Vivad-Se-Vishwas Act, 2020, was factually incorrect in the context of the appeal filed against the Section 153A assessment. To meet the ends of justice, the Tribunal decided to restore the issue to the file of the Ld. CIT(A) to decide the appeal on its merits after providing the assessee with a reasonable opportunity of being heard. The appeal was allowed for statistical purposes.

What were the facts?

The assessee, M/s Kusvin Vyapaar Pvt. Ltd., filed an appeal before the Income Tax Appellate Tribunal (ITAT), Kolkata Bench 'C', challenging an order dated 04.08.2022 passed by the Commissioner of Income Tax (Appeals)-21, Kolkata. The assessment year in question is 2014-15. The assessee's appeal before the Ld. CIT(A) was dismissed ex-parte. The Ld. CIT(A) erroneously believed that the assessee had opted for the Direct Tax Vivad-Se-Viswas Scheme, 2022, and therefore treated the appeal as infructuous. The assessee contended that this was a misapprehension of facts, as the scheme was not opted for in relation to the assessment framed under Section 153A of the Income Tax Act, 1961, against which the appeal was filed. The revenue did not present arguments.

What were the issues?

1. Whether the Ld. CIT(A) erred in dismissing the assessee's appeal ex-parte on the mistaken premise that the assessee had opted for the Direct Tax Vivad-Se-Viswas Scheme, 2022, thereby contravening the principles of natural justice and misinterpreting the facts relevant to the assessment framed under Section 153A of the Income Tax Act, 1961? Assessee's Contention: The assessee argued that the Ld. CIT(A) dismissed the appeal based on a factual error, believing the assessee had gone into the Vivad-Se-Vishwas Scheme. This was incorrect, as the scheme was not applied to the assessment framed under Section 153A of the Act, dated 30.03.2022. The assessee sought restoration of the appeal to the Ld. CIT(A) for a decision on merits. Revenue's Contention: The revenue left the issue to the decision of the Bench.

Which sections of the Income-tax Act were involved?

Section 153A,Section 4(2)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “C” BENCH: KOLKATA

Before: Shri Rajesh Kumar & Shri Sonjoy Sarma]

आयकर अपील�य अ�धकरण, कोलकाता पीठ ‘‘सी’’, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH: KOLKATA �ी राजेश कुमार, लेखा सद�य एवं �ी संजय शमा� �या�यक सद�यके सम� [Before Shri Rajesh Kumar, Accountant Member & Shri Sonjoy Sarma, Judicial Member] I.T.(SS).A. No. 66/Kol/2022 Assessment Year: 2014-15 M/s Kusvin Vyapaar Pvt. Ltd. Vs. ACIT, Central Circle-3(1), Kolkata (PAN: AABCK 9724 F) Appellant / (अपीलाथ�) Respondent / ( !यथ�)

13.02.2023 Date of Hearing / सुनवाई क$ �त&थ Date of Pronouncement/ 17.02.2023 आदेश उ)घोषणा क$ �त&थ For the Appellant/ Shri S. Jhajharia, A.R �नधा�/रती क$ ओर से For the Respondent/ G. Hukugha Sema, CIT राज�व क$ ओर से

ORDER / आदेश Per Rajesh Kumar, AM:

This is the appeal preferred by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals)-21, Kolkata (hereinafter referred to as the Ld. CIT(A)”] dated 04.08.2022 for the AY 2014-15.

2.

The assessee has challenged dismissal of ex-parte appeal by Ld. CIT(A) by mis-construing the facts that the assessee has gone into Direct Tax Vivad-Se-Viswas Scheme, 2022 (hereinafter referred to as the Scheme) and thus dismissed the appeal.

2 I.T.(SS).A. No. 66/Kol/2022 Assessment Year: 2014-15 M/s Kusvin Vyapar Pvt. Ltd. 3. The Ld. Counsel for the assessee brought to the notice of the Bench that in this case two assessments were framed. First assessment u/s 143(3) dated 30.12.2016 against which the assessee had gone into the VSVS. Thereafter a search action was conducted on the assessee and assessment was again framed u/s 153A of the Act vide order dated 30.03.2022 against which the appeal was filed before the Ld. CIT(A) which was dismissed in liminie upon the wrong understanding that the assesse has gone into VSVS. The assessee has filed an appeal before the Tribunal against the ex- parte dismissal of the appeal of the assessee on the wrong appreciation of facts that the assessee had gone into the Scheme. The Ld. Counsel for the assessee therefore prayed that the appeal may kindly be restored to the file of the ld CIT(A) so that the same can be decided on merit as the assessee has not gone into VSVS Scheme against the assessment framed u/s 153A dated 30.03.2022.

4.

The Ld. D.R. on the other hand left the issue to the decision of the Bench.

5.

After examining the facts and perusing the material on record, we find that the Ld. CIT(A) has dismissed the appeal of the assessee on wrong appreciation of facts that the assessee has gone into VSVS Scheme and thus dismissed the appeal by giving the following observations:

“ 2.0. It is noted that the appellant opted for the Vivad Se Vishwas Scheme vide application dated 21.12.2020. Pursuant thereto, the Pr. CIT, Central, Kolkata-2, has certified the full and final payment of Rs. 19,59,438/-as taxes in terms of Form No. 5 dated 03/06/2022. In view of the above, the appeal is treated as infructuous as per section 4(2) of the Direct Tax Vivad-Se- Vishwas Act, 2020.” We observe that the Ld. CIT(A) has wrongly dismissed the appeal of the assessee and therefore the ends of justice would be met if the issue is restored to the file of the Ld. CIT(A) to decide the same on merit after affording a reasonable opportunity of hearing to the assessee.

3 I.T.(SS).A. No. 66/Kol/2022 Assessment Year: 2014-15 M/s Kusvin Vyapar Pvt. Ltd. 6. In the result, the appeal of the assessee is allowed for statistical purposes.

Order is pronounced in the open court on 17th February, 2023

Sd/- Sd/- (Sonjoy Sarma /संजय शमा�) (Rajesh Kumar/राजेश कुमार) Judicial Member/�या�यक सद�य Accountant Member/लेखा सद�य Dated: 17th February, 2023 SB, Sr. PS Copy of the order forwarded to: 1. Appellant- M/s Kusvin Vyapar Pvt. Ltd., C/O, Salarpuria Jajodia & Co., 7, C.R. Avenue, 3rd Floor, Kolkata-700072. 2. Respondent – ACIT, Central Circle-3(1), Kolkata 3. Ld. CIT(A)-21, Kolkata (Sent through e-mail) 4. Pr. CIT- , Kolkata 5. DR, Kolkata Benches, Kolkata (sent through e-mail)

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