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Facts
The assessee filed an appeal against an assessment order under Section 143(3), but the CIT(A) dismissed it as infructuous, erroneously believing the assessee had opted for the Direct Tax Vivad Se Vishwas Scheme for that particular appeal. The assessee contended this was a factual error and sought remand for adjudication on the original addition under Section 68. There was a delay in filing the ITAT appeal which was condoned.
Held
The Tribunal found the CIT(A)'s dismissal was based on a mistaken assumption regarding the assessee's option for the VSV Scheme. In the interests of justice, the Tribunal set aside the CIT(A)'s order and remanded the matter back to the CIT(A) for fresh adjudication on merits, allowing the appeal for statistical purposes.
Key Issues
Whether the CIT(A) was justified in dismissing an appeal as infructuous based on a mistaken belief that the assessee had opted for the Direct Tax Vivad Se Vishwas Scheme, and if the matter should be remanded for fresh adjudication on merits.
Sections Cited
68, 143(3), 250, 263, 271DA
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “A” BENCH”, KOLKATA
Great Eastern Retail Private Limited, 15B, Sarat Bose Road, Kolkata, West Bengal - 700020 [PAN: AABCG1741J] ……..…...…………….... Appellant vs. DCIT, Circle 5(1), Kolkata, P-7, Chowringhee Square, Aayakar Bhawan, Kolkata - 700069 ................................. Respondent Appearances by: Assessee represented by : Akkal Dudhwewala, FCA Department represented by : Sandeep Kumar Mehta, Sr. DR Date of concluding the hearing : 03.07.2025 Date of pronouncing the order : 08.07.2025 O R D E R
PER SANJAY AWASTHI, ACCOUNTANT MEMBER
In this case, the ITAT Registry has pointed out that there is a delay of 801 days for which the assessee has filed an affidavit as under: “I Pulkit Baid, son of Nirmal Kumar Baid aged 42 years, Director of M/s Great Eastern Retail Private Limited having PAN AABCG1741J, do hereby state as 1. That the company, M/s Great Eastern Retail Private Limited had preferred an appeal in Form 35 on 29.04.2021 against the assessment order dated 12.04.2021 passed u/s 143(3) of the Act for the AY 2018-19 by the Assessment Unit. National Faceless Assessment Centre, Delhi.
That the company, in the month of December, 2020 had opted to settle the appeal in relation to the penalty order dated 28.02.2019 passed u/s 271DA of the Act for the AY 2018-19 under the Direct Tax Vivaad Se Vishwas Scheme, 2020.
That the company affirms that the appellate order dated 28.10.2022 passed u/s 250 of the Income-tax Act, 1961 dismissing the appeal against the assessment order u/s 143(3) of the Act dated 12.04.2021 on complete incorrect and mistaken assumption of fact that the company had opted for VSV Scheme 2020, was not Great Eastern Retail Pvt. Ltd. served on the email ID registered in the IT portal nor was the appellate order served by registered post.
4. That it was only upon examining and reviewing the details of all pending appeals on the IT portal while filing Form 35 electronically in relation to the order passed u/s 263 r.w.s 143(3) of the Act by the JAO on 10.02.2025, that the company was informed that, the Appeal Tab for AY 2018-19 is being reflected as 'Closed' and that the appeal against the assessment order u/s 143(3) dated 12.04.2021, had been dismissed as infructuous by the Ld. CIT(A). NFAC, Delhi vide its appellate order dated 28.10.2022 5. That upon being apprised of this information, the management immediately retrieved records from the ITBA portal and arranged the relevant papers and shared the same with their tax counsel to advise for the way forward, who has now presented this appeal.
That the reasons for delay in filing the appeal were genuine and bonafide.
That I also confirm that the facts stated in the enclosed Condonation Petition are true and correct to the best of my knowledge and belief.” 1.1 Considering the averments made in the said affidavit, the delay is hereby condoned and the appeal is admitted for adjudication.
2. In this case, the grievance of the assessee arises from order u/s 250 of the Income Tax Act, 1961 (hereafter “the Act”) dated 28.10.2022, passed by the Ld. CIT (Appeals), National Faceless Appeal Centre (NFAC), Delhi. Through this order, the Ld. CIT(A) has concluded as under:
“2.0 It is noted that the appellant opted for the Vivad Se Vishwas Scheme vide declaration dated 22/12/2020. Pursuant thereto, the PCIT, has certified the full and final payment of Rs. 0/- as taxes in terms of Form. 5 dated 03/01/2022 and Certificate No. 952504360301220. In view of the above, the appeal is treated as in fructuous as per clause/section 4(2) of Direct Tax Vivad Se Vishwas Act. 2020. 3.0 purposes. Accordingly, the appeal is treated as dismissed for statistical purposes.” 2.1 The assessee has filed this appeal with the following grounds:
1. “(a) For that on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was grossly justified in dismissing the appeal of the assessee by erroneously holding that the assessee had settled the dispute by opting for the Direct Tax Vivaad Se Vishwas Scheme, 2020 ('DTVSV Scheme') and in that view of the matter, the appellate order passed u/s 250 of the Act dated 28.10.2022 being factually perverse deserves to be set aside. (b) For that on the facts and in the circumstances of the case and in law, the Ld. CIT(A) grossly erred in dismissing the appeal of the assessee in complete ignorance of the written submissions along with the paper book filed by the assessee and therefore the impugned appellate order being perverse deserves to be quashed.
Great Eastern Retail Pvt. Ltd. 2. (a) For that on the facts and in the circumstances of the case, the AO had grossly erred in making addition of Rs. 2,12,00,000/- u/s 68 of the Act. (b) For that on the facts and in the circumstances of the case, the assessee having provided all the relevant documents to substantiate the genuineness of the loans obtained during the year, the AO grossly erred in alleging that the loans of Rs.2,12,00,000/- was not verifiable and hence the impugned addition made u/s 68 of the Act deserves to be deleted.
3. For that the appellant craves leave to submit additional grounds and/or amend or alter the grounds already taken either at the time of hearing of the appeal or before.”
3. Before us, the Ld. AR pointed out that the Ld. CIT(A) has passed the impugned order under the mistaken belief that the assessee has opted for Direct Tax Vivad Se Vishwas Scheme even when this was not the correct position. The Ld. AR briefly narrated the facts of the case and requested that this matter may be remanded back to the file Ld. CIT(A) for fresh adjudication on the merits of the case.
3.1 The Ld. DR had no objection in case this matter was to be remanded back to the file of Ld. CIT(A) for fresh adjudication.
We have heard the Ld. AR/DR and we have also gone through the orders of authorities below and the document placed before us through a paper book. It is felt that in the interests of justice, this matter deserves to be remanded back to the file of Ld. CIT(A) for fresh adjudication as this is not a case were the assessee has objected for DTVSVS. Accordingly, we set aside the impugned order and remand back to the file of Ld. CIT(A) for adjudication, after providing an opportunity of being heard to the assessee.
In result, appeal is allowed for statistical purposes.
Order pronounced on 08.07.2025