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Income Tax Appellate Tribunal, “G” BENCH, MUMBAI
Before: SHRI PRASHANT MAHARISHI & SHRI SANDEEP SINGH KARHAIL
The present appeal has been filed by the assessee challenging the impugned order dated 11/05/2022, passed under section 250 of the Income Tax Act, 1961 (“the Act”) by learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, [“learned CIT(A)”], for the assessment year 2018–19.
In its appeal, the assessee has raised following grounds:
“a) The Ld. CIT(A) has erred in passing the order by treating the appeal as infructuous on the basis that the assessee had opted under the Direct Taxes Vivad se Vishwas Scheme 2020 without considering that the Sarovar Hotels Pvt. Ltd. ITA No.1750/Mum./2022 assessee had not opted under the Direct Taxes Vivad se Vishwas Scheme 2020 against the order passed under section 143(3) of the Act. The Order therefore passed is bad in law and needs to be quashed. b) The Ld. CIT(A) failed to consider that assessee had opted for the Direct Taxes Vivud Se Vishwas Scheme 2020 for the year under consideration only in case of appeal filed against order passed under section 271DA of Income Tax Act. 1961 (the Act) dated 31.07 2019. The Ld. CIT(A) has assumed that the assessee has opted under Direct Taxes Vivad Se Vishwas Scheme 2020 for the appeal under consideration based on the information available on ITBA portal of the Income Tax Department without considering that the same was in relation to the order passed u/s 271DA of the Act. The same be considered and the appeal be restored. c) The Ld. CIT(A) has erred in dismissing the appeal filed against order passed under section 143(3) of the Act on the ground that assesse opted for the Direct Taxes Vivad Se Vishwas Scheme 2020 vide application in Form 1 filed on dated 04/04/2020 without considering the facts and circumstances of the case. The same be considered and the order be quashed. d) The Ld. CIT(A) has erred in not giving an opportunity of being heard on the dismissal of the appeal to the assessee which is against the principles of natural justice. Hence, the said order needs to be quashed and the appeal be restored to the Ld. CIT(A). The assessee craves leave add, alter or delete to the grounds of appeal at the time of or before hearing.
3. The only grievance of the assessee, in the present appeal, is against the dismissal of its appeal by the learned CIT(A) on the basis that the assessee has opted for settlement under Direct Taxes Vivud Se Vishwas Scheme 2020 (“VSVS 2020”).
During the hearing, the learned Authorised Representative for the assessee (“learned A.R.”) submitted that the learned CIT(A) dismissed the appeal filed by the assessee as infructuous under the impression that the assessee has opted for settlement of dispute under VSVS 2020. The learned A.R. by referring to Form no.5, issued by the designated authority on 10/12/2020, submitted that the assessee had opted for settlement of dispute Page | 2
Sarovar Hotels Pvt. Ltd. ITA No.1750/Mum./2022 under the VSVS 2020, in respect of the disputed penalty levied under section 271DA of the Act for the assessment year 2018–19. It was further submitted that the assessee never opted under the VSVS 2020 in respect of additions made in the quantum proceedings for the assessment year 2018–19. The learned A.R. also placed on record Form no.35 and grounds of appeal, in respect of its appeal filed before the learned CIT(A) against the penalty order.
On the other hand, the learned Departmental Representative (“learned D.R.”) did not bring anything on record to controvert the submissions made on behalf of the assessee.
Having considered the submissions of both sides and having perused the material available on record, we find that the assessee had opted for settlement under the VSVS 2020 in respect of the penalty levied under section 271DA of the Act. The said fact is evident from Form no.5, dated 10/12/2020, issued by the designated authority under the VSVS 2020. However, the learned CIT(A), vide impugned order, dismissed the appeal filed by the assessee against the assessment order dated 06/04/2021, passed under section 143(3) r/w section 143(3A) and section 143(3B) of the Act, by observing as under:–
“2. It is noted that the appellant opted for the Direct Taxes Vivad Se Vishwas Scheme 2020 vide application in Form 1 filed on dated 04/04/2020. Pursuant thereto, it is found that the appellant has made the full and final payment of the arrear taxes. The issue date of VSVs order u/s 5(2) is 10/12/2020. In view of the above, the appeal is treated as infructuous as per subsection 2 of section 4 of the Direct Tax Vivad Se Vishwas Act, 2020.”
Sarovar Hotels Pvt. Ltd. ITA No.1750/Mum./2022
Thus from the record, it is amply evident that the learned CIT(A) has proceeded to dismiss the appeal on a wrong footing and considered the settlement of dispute under VSVS 2020, in respect of a different dispute as a basis for dismissing the appeal filed by the assessee. Hence, the impugned order passed by the learned CIT(A) is set aside and the appeal of the assessee is restored to the file of the learned CIT(A) for adjudication of the same on merit. Accordingly, the grounds raised by the assessee are allowed for statistical purposes.
In the result, the appeal by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 28/11/2022