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Income Tax Appellate Tribunal, MUMBAI BENCHES “D”, MUMBAI
Before: SHRI SHAMIM YAHYA (AM) & SHRI RAM LAL NEGI (JM)
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES “D”, MUMBAI BEFORE SHRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) Assessment Year: 2010-11 Manoj Chaturvedi, The ITO – 4(2), 701, Nikhil Heritage, Achole Road, “A” Wing, 6th Floor, Ashar IT Nallasopara (E), Tal: Vasai, Park, Wagle Indl. Estate, Dist: Palghar - 401209 Vs. Road No. 16Z, PAN: ACIPC2076Q Thane (W)- 400604
(Appellant) (Respondent)
Assessee by : None Revenue by : Shri Manpreet Singh Duggal (DR) Date of Hearing: 18/11/2020 Date of Pronouncement: 23/11/2020
O R D E R PER RAM LAL NEGI, JM This appeal has been filed by the assessee against the order dated 03.12.2018 passed by the Commissioner of Income Tax (Appeals)-3 (for short „the CIT(A), Thane, for the assessment year 2010-11, whereby the Ld. CIT(A) has dismissed the appeal filed by the assessee against the assessment order passed u/s 143 (3) r.w.s. 147 of the Income Tax Act, 1961 (for short the „Act‟). 2. The assessee has challenged the impugned order passed by the Ld. CIT (A) on the following effective ground:- “1.In the facts and circumstances of the case and in law, the learned Assessing Officer erred in passing order u/s 143 (3) r.w.s. 147 merely on the basis of third party statements. Assessment Year: 2010-11 2. In the facts and circumstances of the case and in law, the learned A.O. erred in adding Rs. 86,75,000/- as unexplained money u/s 69A even though: a. The notice u/s 143(2) was issued 6 months after issuance of notice of reopening; this renders the entire reassessment proceedings void. b. The Assessing Officer cannot carry out reassessment proceedings in spite of the fact that assessment was completed u/s 143(1) earlier. c. The Assessing Officer cannot initiate reassessment proceedings merely on the statements of third parties. d. The Assessing Officer has not furnished copies of statements of the persons on whom search was conducted. e. The said documents on the basis of which additions were made which were seized from Maad Group had no evidentiary value.
In facts and circumstance of the case and in law, the learned Assessing Officer erred in passing the order u/s 143(3) R W S 148 as the reassessment proceedings initiated by Assessing Officer under section 148 were illegal and void ab initio because the Assessing Officer should have issued notice under section 153C and should have framed assessment under section 153C, read with section 153A particularly when the Assessing Officer received information from the office of the ACIT Central Circle 2, Thane that a search action had been conducted on the Maad Group of Companies on 31/07/2014 and assessed u/s 153A.
In facts and circumstance of the case and in law, the learned Assessing Officer erred in making routine additions in reassessment u/s 148 in the absence of any incriminating material. 5 In facts and circumstance of the case and in law, the learned Assessing Officer erred in completing Search assessment U/s 143(3) rws 148 without furnishing copy of the satisfaction recorded u/s 153 [C] 6 In facts and circumstance of the case and in law, the learned Assessing Officer erred in completing Search assessment U/s 143(3) rws 148 and has passed the order on the basis of approval not granted u/s 153D. 7 In facts .and circumstance of the case and in law, the learned Assessing Officer erred in completing Search assessment U/s Assessment Year: 2010-11 143(3) rws 148 on the basis of enclosed document seized from and belonging to the said Maad group but not furnishing the copy of the same to the Appellant. 8 In the facts and circumstances of the case and in law, the learned A.O. erred in initiating penalty u/s 271 (1) (c) and charging interest u/s 234 A, B, C & D.”
This case was fixed for hearing on 18.11.2020. However, when the case was called out for hearing, none appeared on behalf of the assessee. We noticed that the assessee has submitted an application stating that the assessee has opted to settle the dispute under Vivad se Vishwas Act, 2020, therefore the appeal may be kept in abeyance. 4. The Ld. departmental representative did not oppose the assessee‟s application. In the case of M/s. Nannusamy Mohan (HUF) vs. ACIT, the Hon‟ble Madras High Court has dismissed the appeal of the assessee as withdrawn in which the counsel had made the similar submissions before the Hon‟ble Court. The observations of the Hon‟ble High Court are as under:-
“3. 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. I. 4. 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. 5. 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 Assessment Year: 2010-11 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. 6. 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 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.I 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.” 5. Since the assessee has opted to settle the dispute under Vivad se Vishwas Act, 2020, we respectfully following the decision of the Hon‟ble Madras High Court in the case of M/s. Nannusamy Mohan (HUF) vs. ACIT Assessment Year: 2010-11 (supra), dismiss the present appeal as withdrawn. However, the appellant/assessee is at liberty to file miscellaneous application for restoration of appeal as discussed by the Hon‟ble Madras High Court in paragraph 7 of the judgment. In the result, appeal filed by the assessee for assessment year 2010-2011 is dismissed. Order pronounced on 23rd November, 2020 under rule 34 (4) of the Income Tax Appellate Tribunal Rules, 1963. (SHAMIM YAHYA) JUDICIAL MEMBER म ुंबई Mumbai; दिन ुंक Dated: 23/11/2020 Alindra, PS आदेश प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपील र्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आय क्त(अपील) / The CIT(A)- 4. आयकर आय क्त / CIT 5. दिभ गीय प्रदिदनदि, आयकर अपीलीय अदिकरण, म ुंबई / DR, ITAT, Mumbai 6. ग र्ड फ ईल / Guard file.
आदेशानुसार/ BY ORDER, सत्य दपि प्रदि //// उि/सहायक िंजीकार (Dy./Asstt.