SHYMAL PAUL,KOLKATA vs. I.T.O., WARD-29(1), KOLKATA, KOLKATA

PDF · subscribers
ITA 576/KOL/2022Status: DisposedITAT Kolkata27 October 2022AY 2015-20164 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the CIT(A) erred in dismissing the appeals by wrongly assuming the assessee opted for the Vivad se Vishwas Scheme. The CIT(A) was directed to adjudicate the issues on merits.

What were the facts?

The assessee's appeals before the CIT(A) were dismissed as withdrawn due to a mistaken belief that the assessee had opted for the Vivad se Vishwas Scheme for those appeals. The assessee had only opted for the scheme concerning a penalty levied under Section 271F.

What were the issues?

Whether the CIT(A) correctly dismissed the appeals as withdrawn based on a mistaken application of the Vivad se Vishwas Scheme, and whether the appeals should be decided on merits.

Which sections of the Income-tax Act were involved?

Section 271F,Section 143(3),Section 143(1),Section 250

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, BENCH “A-SMC”KOLKATA

Before: Shri Manish Borad

Both the captioned appeals of assessee for the assessment year 2015-16 are directed against the separate orders dt. 09-09-2022 and 14-09-202218-09-2020 passed u/s. 250 of the Income-tax Act, 1961 ( in short, referred to as the ’Act’) by the ld. Commissioner of Income-tax, Appeals [ in short, hereafter referred to as ‘the ‘ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi.

1.

AY 2015-16 ÁY 2015-16 Shymal Paul

2.

The assessee has raised the following common grounds of appeal for both the AY 2015-16 under consideration:-

1.

THAT THE LD. CIT(A), NFAC’s ORDR DATED 09.09.2022/14.09.2022 IS BAD IN LAW AND FACTS.

2.

THAT THE LD.CIT(A), NFAC HAS ERRED IN LAW AND ON FACTS IN DISMISSING

THE APPEAL AAINST ORDER U/S 143(3) DT. 08.12.2017/11.04.2017 BY WRONGLY ASSUMING THAT THE ASSESSEE FILED APPLICATION UNDER DTVSVA 2020 AND THAT CERTIFICATE IN FORM 5 WAS ISSUED BY PCIT ALTHOUGH THE DTVSVA APPLICATION WAS FOR PENALTY U/S 271 F ONLY.

3.

THAT THE LD.CIT(A) NFAC HAS ERRED IN NOT DECIDING ON MERITS THE GROUNDS OF APPEAL AGAINST THE OPRDER U/S 143(3) OF THE ACT. THAT THE APPLICANT CRAVES LEAVE TO ALTER/AMEND ANY 4. GROUNDS OF APPEAL AND TO TAKE ADDITIONAL GROUNDS BEFORE OR AT THE TIME OF HEARING OF THE APPEAL.

3.

At the outset, the Ld. Counsel for the assessee submitted that the ld. CIT(A) erred in dismissing the assessee’s appeal(s) inadvertently observing that the assessee has opted under DTVSVA 2020( Vivad se Viswas Scheme 2020). Further, he submitted that the assessee has opted for DTVSVA 2020 Scheme only with regard to appeal filed before the ld. CIT(A) against a penalty levied u/s. 271F of the Act. He, therefore, prayed that suitable direction may be given to the ld. CIT(A) to adjudicate the issues raised by the assessee in both the appeals for both the AY 2015-16 under consideration on merits.

4.

Per contra, the Ld. DR failed to controvert the submissions made by the ld. Counsel for the assessee.

5.

I have heard the rival contentions and perused the material placed on record before me. I find that in the case of assessee, the assessment order u/s. 143(3) of the Act for the AY 2015-16 was framed

2.

AY 2015-16 ÁY 2015-16 Shymal Paul

on 08-12-2017 and also an intimation u/s. 143(1) of the Act issued on 11-04-2017 for the AY 2015-16. The assessee challenged both these orders before the ld. CIT(A) in Appeal No. CIT(A)-8/10087/2017-18 and Appeal No. CIT(A), Kolkata-8/10006/2017-18, Further, we find that a penalty u/s. 271F of the Act was also levied on the assessee, which was also challenged before the ld.CIT(A) in Appeal No. allotted CIT(A), Kolkata-8/10001/2019-20. 6. Against the order of penalty levied u/s. 271F of the Act, the assessee opted for DTVSVA 2020 Scheme and after paying tax/penalty Form-5 was issued for full and final settlement of tax arrear u/s.5(2) r.w.s 6 of the Direct Tax Vivad se Viswas 2020 Scheme(DTVSVS 2020).

7.

However, on perusal of the impugned order(s) of the ld. CIT(A), I find that the ld. CIT(A) inadvertently dismissed both the assessee’s appeals bearing number Appeal No. CIT(A)-8/10087/2017-18 and Appeal No. CIT(A), Kolkata-8/10006/2017-18 stating that since Form-5 had been issued to assessee under D.T.V.V.S 2020, both the appeals are dismissed as withdrawn. This finding of the impugned orders of the ld. CIT(A) in the instant two appeals is factually incorrect, since the assessee has not opted for DTVSVA 2020 Scheme against both these appeals.

8.

I, therefore, hold that firstly the ld. CITA) erred in dismissing the appeal(s) by treating the same as withdrawn wrongly assuming that the assessee has opted for DTVSVA 2020 Scheme and secondly, since the ld. CIT(A) has not dealt with assessee’s case and not adjudicated the 3. AY 2015-16 ÁY 2015-16 Shymal Paul

issues raised on merits by the assessee before the ld. CITA) in Appeal No. CIT(A)-8/10087/2017-18 and Appeal No. CIT(A), Kolkata- 8/10006/2017-18, therefore, I direct the ld. CIT(A) to adjudicate the same after providing reasonable opportunity of being heard to the assessee. Thus, the grounds raised by the assessee before me in both the appeal for the AY 2015-16 are allowed for statistical purpose.

प"रणामत: "नधा"रती क" अपील (ITA No. 576 & 577/Kol/2022 for the AY 2015-16 सांि"यक" उ"दे"य से मंजूर क" जाती है।

9.

In the result, both the appeals of the assessee are allowed for statistical purpose.

आदेश खुले "यायपीठ म" "दनांक 27-10-2022 को उ"घो"षत। (MANISH BORAD) ACCOUNTANT MEMBER Dated :27 -10-2022 **PP/SPS आदेश क" ""त"ल"प अ"े"षत / Copy of Order Forwarded to:- 1.अपीलाथ"/Appellant/: Shymal Paul, 25/1/5A Nakuleshwar Bhattacharjee Lane, Kalighat, Kolkata-700 026. 2. ""यथ"/Respondent/:ITO, Ward 29(1), Kolkata,2 Gariahat Road, Kolkata-700 068. 3. संबं"धत आयकर आयु"त / Concerned CIT 4. आयकर आयु"त- अपील / CIT (A)

5.

"वभागीय ""त"न"ध, आयकर अपील"य अ"धकरण कोलकाता / DR, ITAT, Kolkata 6.गाड"फाइल/Guardfile. By order/आदेश से, //

More judgments on Section 271F

All 927 judgments and leading authorities on Section 271F →

Recent GST High Court judgments

Search GST case law →