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Income Tax Appellate Tribunal, ‘A’ BENCH, CHENNAI
Before: SHRI V.DURGA RAO & SHRI G. MANJUNATHA
PER BENCH:
This bunch of 18 appeals filed by different assessees are
directed against orders of learned Commissioner of Income Tax
(Appeals), Chennai of even dated 23.09.2019 /28.02.2019/
25.02.2019 27/08/2019 /26.08.2019 /23/08/2019 /27.11.2019 /
08.11.2019 /07.11.2019 /30/10/2019 for respective assessment
years.
We find that appeals filed by assessees in ITA Nos. 310 to
312/Chny/2020 at Sr.No. 1 to 3, ITA Nos.3143 to 3147/Chny/2019
at Sr.No.6 to 10 and ITA Nos. 161 to 165/Cheny/2020 at Sr.No.14
to 18 are barred by limitation for which necessary petitions for
condonation of delay along with affidavits explaining the reasons
3 ITA Nos. 310 to 312/Chny/2020 & 15 Ors.
for the delay have been filed. The learned counsels submitted that
assessees could not file appeals within the time allowed under the
Act, therefore delay may be condoned. Having heard both sides and
considered the petitions filed by the assessees for condonation of
delay, we are of the considered view that reasons given by
assessees for not filing the appeals within the time allowed under
the Act comes under reasonable cause as provided under the Act
for condonation of delay and hence, delay in filing of above
appeals are condoned and appeals filed by the assessees are
admitted for adjudication.
We have heard the counsels for the assessee’s and the ld. DR
and also perused the material available on record. At the time of
hearing, learned counsels for the assessee’s have made a
statement at bar that the assessee’s wants to utilize the Direct
Taxes ‘Vivad se Vishwas Scheme, 2020’ to settle pending dispute
relating to Direct Taxes and in this regard some of assessee’s have
filed form No 1 and 2 and awaiting form no. 3 from the designated
authority. In some cases, the assessee’s have received form no. 3
from the designated authority and in some cases, the assessee
4 ITA Nos. 310 to 312/Chny/2020 & 15 Ors.
have filed letter and expressed their willingness to file form no. 1 and
2 before the designated authority.
The Bench has considered rival contentions of both sides and
after hearing both parties, we found that the Government of India
has announced in the Budget, 2020, a Direct Taxes ‘Vivad se
Vishwas Scheme, 2020’ to settle pending dispute relating to
Direct Taxes at various appellate forums including the First
Appellate Authority, Tribunal, High Court and Supreme Court. In this regard, the Scheme has been notified on 17th March, 2020 and
became Direct Taxes ‘Vivad se Vishwas Act, 2020’. As per the said Scheme, assessees are allowed to settle direct tax dispute in a
manner and procedure prescribed therein by filing necessary
declaration and undertaking. The Scheme has also specified the
amount of taxes, interest, and penalty, if any payable under the Act.
If an assessee filed a declaration and pay specified taxes as per
the scheme and withdraw the appeal pending before the appellate
authorities, the Designated Authority shall pass an order in Form 5
confirming payment made under the scheme and grant immunity
from penalty and prosecution.
5 ITA Nos. 310 to 312/Chny/2020 & 15 Ors.
In these present appeals, some assessee’s have filed
declaration in Form No.1 along with undertaking waiving rights for
any remedy in Form No. 2 to the designated Authority and has also
received Form 3. In some cases, form no 1 and 2 has been filed
and awaiting form no. 3 from the designated authority and in some
cases, the assessee’s have expressed their willingness to file form
no. 1 and 2 and settle their dispute under the scheme. Therefore,
once the assessee’s intend to file a declaration in Form No.1 along
with undertaking and expressed their willingness to settle pending
disputes regarding direct taxes, then there is no point in keeping
appeal filed by the assessee’s. We, further noted that recently the
Hon’ble Jurisdictional High Court of Madras has considered an
identical application filed by an assessee in the case of M/s.
Nannusamy Mohan (HUF) Vs. ACIT in T.C.A No.372 of 2020 for
availing the benefit of ‘Vivad se Vishwas Scheme, 2020’, where the
Hon’ble High Court has dismissed the appeal filed by the petitioner
as withdrawn, but allowed liberty to the assessee to restore the
appeal in the event the designated authority for any reason reject
application filed by the assessee under section 4 of the Act. The
relevant portions of the observations of the Hon’ble High Court of
Madras vide order dated 16.10.2020 are extracted as under:-
6 ITA Nos. 310 to 312/Chny/2020 & 15 Ors.
“2. We have heard Mr.M.P.Senthil Kumar, learned counsel appearing for the appellant/assessee and Mr.T.R.Senthil Kumar, learned Senior Standing Counsel and Ms. K.G.Usha Rani, learned counsel for the respondent/Revenue.
The learned counsel for the appellant / assessee, on instructions, submitted that the appellant / assessee intends to avail the benefit of Vivad Se Vishwas Scheme (‘ VVS Scheme' for brevity) and in this regard, the assessee is taking steps to file the application / declaration in Form No. 1.
It may not be necessary for this Court to decide the Substantial Questions of Law framed for consideration on account of certain subsequent developments. The Government of India enacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of 2020) to provide for resolution of disputed tax and for matters connected therewith or incidental thereto. The Act of the Parliament received the assent of the President on 17th March 2020 and published in the Gazette of India on 17th March 2020.
In terms of the said Act, the assessee has been given an option to put an end to the tax disputes, which may be pending at different levels either before the First Appellate Authority or before the Tribunal or before the High Court or before the Hon'ble Supreme Court of India. Under Section 2(j) "disputed tax" has been defined. In terms of Section 3, where a declarant means a person, who files a declaration under Section 4 on or before the last date files a declaration to the designated authority in accordance with the provisions of Section 4 in respect of tax arrears, then, notwithstanding anything contained in the Income Tax Act or any other law for the time being in force, the amount payable by the declarant shall be determined in terms of Section 3(a-c) thereunder.
The First Proviso to Section 3 states that in case where an Appeal or Writ Petition or Special Leave Petition is filed by the Income Tax authority on any issue before the Appellate Forum, the amount payable shall be one-half of the amount in the table stipulated in Section 3 calculated on such issue, in such a manner as may be prescribed. The second proviso deals with the cases, where the matter is before the Commissioner (Appeals) or before the Dispute Resolution Panel. The third proviso deals with cases, where the issue is pending before the Income Tax Appellate Tribunal. The filing of the declaration is as per Section 4 of the Act and the particulars to be furnished are also
7 ITA Nos. 310 to 312/Chny/2020 & 15 Ors.
mentioned in the Sub Sections of Section 4. Section 5 of the Act deals with the time and manner of the payment and Section 6 deals with Immunity from initiation of proceedings in respect of offence and imposition of penalty in certain cases. Section 9 of the Act deals with cases, where the Act 3 of 2020 will not be applicable. 7. As observed, the assessee is given liberty to restore this appeal in the event the ultimate decision to be taken on the declaration to be filed by the assessee under Section 4 of the said Act is not in favour of the assessee. If such a prayer is made, the Registry shall entertain the prayer without insisting upon any application to be filed for condonation of delay in restoration of the appeal and on such request made by the assessee by filing a Miscellaneous Petition for Restoration, the Registry shall place such petition before the Division Bench for orders. 8. In the light of the above, We direct the appellant / assessee to file the Form No.1 on or before 20.11.2020 and the competent authority shall process the application / declaration in accordance with the Act and pass appropriate orders as expeditiously as possible preferably within a period of six (6) weeks from the date on which the declaration is filed in the proper form.”
In the light of the above decision of the Hon’ble High Court of
Madras, and by taking note of the fact that some assessee’s have
already filed declaration in Form No.1 along with Form No.2 to the
Designated Authority and received Form 3 and some assessee’s
had already filed Form No. 1 & 2 and awaiting form no. 3 from the
designated authority and also the fact that remaining assessee’s are
willing to file Form No. 1 and 2 within the due date prescribed for this
purpose, we dismiss the appeals filed by the assessee’s as
withdrawn. However, a liberty is given to the assessee’s to restore
8 ITA Nos. 310 to 312/Chny/2020 & 15 Ors.
the appeals, in the event of the Designated Authority, for any
reason reject the application filed by the assessee under section 4
of the said Act.
In the result, all the appeals filed by the assessees are
dismissed as withdrawn. Order pronounced in the open court on 1st March, 2021
Sd/- Sd/- ( वी. दुगा� राव ) ( जी.मंजुनाथ ) ( V.Durga Rao ) ( G.Manjunatha ) �या�यक सद�य /Judicial Member लेखा सद�य / Accountant Member
चे�नई/Chennai, �दनांक/Dated 1st March, 2021 DS आदेश क� ��त ल!प अ$े!षत/Copy to: 1. Appellant 2. Respondent 3. आयकर आयु%त (अपील)/CIT(A) 4. आयकर आयु%त/CIT 5. !वभागीय ��त�न+ध/DR 6. गाड. फाईल/GF.