DCIT, CIRCLE vs. VIVEK LODHA, JAIPUR

ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal filed by the Revenue is directed against the order of the ld. CIT(A) dated 21-06-2023, National Faceless Appeal Centre, Delhi [ hereinafter DCIT , CIRCLE-7, JAIPUR VS VIVEK LODHA, JAIPUR referred to as (NFAC) ] for the assessment year 2012-13. The assessee has also filed the cross objection. 2. The grounds of appeal

raised by the Department in its appeal are as under:- ‘’1. On the facts and in the circumstances of the case whether the ld.CIT(A) was justified in deleting the addition made by the AO amounting to Rs.55,64,473/- u/s 68 of the Act on account of bogus LTCG for acquiring accommodation entries claimed by the assessee as exempt u/s 10(38) of the Act. On the facts and in the circumstances of the case whether the ld. CIT(A) was justified in deleting the addition made by the AO amounting to Rs.1,20,678/- u/s 69C on account of commission paid for acquiring accommodation entries.’’

3. The grounds of appeal raised by the Assessee in its C.O. are as under:- ‘’1. In the facts and circumstances of the case and in law the .CIT(A)/ National Faceless Appeal Centre (NFAC) has erred in confirming the action of the AO in reopening the case of the assessee u/s 147 of the Income Tax Act, 1961.The action of the ld.CIT(A)/ NFAC is illegal, unjustified, arbitrary and against the facts of the case and without jurisdiction. Relief may please be granted by quashing the entire reassessment proceedings initiated by the AO and confirmed by the ld.CIT(A)

‘’2. In the facts and circumstances of the case and in law the .CIT(A)/ National Faceless Appeal Centre (NFAC) has erred in confirming the action of the AO in reopening the case of the assessee u/s 148of the Income Tax Act, 1961 instead of taking recourse to Section 153C of the Act. The action of the ld.CIT(A)/ NFAC is illegal, unjustified, arbitrary and against the facts of the case and without jurisdiction. Relief may please be granted by quashing the entire reassessment proceedings initiated by the AO and confirmed by the ld.CIT(A).’’ DCIT , CIRCLE-7, JAIPUR VS VIVEK LODHA, JAIPUR 4.1 At the outset of the hearing of the C.O. the Bench noted there is delay of 82 days in filing the appeal by the assessee for which the assessee has filed an application for condonation of delay with following reasons:- ‘’Against the relief granted by the ld. CIT(A), Department preferred appeal before the Hon’ble ITAT, Jaipur Bench, Jaipur. Form 36 of the Departmental appeal was received by me on 18-09-2023. Accordingly, I was required to file Cross Objection u/s 253(4) within 30 days i.e. by 17-10-2023. I was not sure whether the appeal/ cross objection regarding the legal issue of reopening u/s 147of the Act was required to be filed or not. Thereafter, while preparation of the appeal, my counsel suggested that the ground regarding the legal issue of reopening u/s 147 of the Income Tax Act, 1961 should be raised. The Cross objection is now being filed with the Hon’ble Bench after delay of 82 days . It is therefore humbly prayed that on account of the above reason, delay in filing the cross objection may please be condoned. The delay is not deliberates. Reliance is place on the following judicial pronouncements:- 1. Collector, Land Acquisition vs MST.Katiji [1987] 167 ITR 471(SC) 2. M/s. GMG Engineering Industries vs M/s. Issa Green Power Solution (Civil Appeal No.4473/2015) with A.C.Govindaraj and Ors vs M. Krishnamoorthy & Ors (Civil Appeal No. 4473/2015)

To this effect, the assessee has filed an affidavit deposing the above facts. 4.2 On the other hand, the ld. DR submitted that the Court may decide the issue as deemed fit and proper in the case.

DCIT , CIRCLE-7, JAIPUR VS VIVEK LODHA, JAIPUR 4.3 After hearing both the parties and perusing the materials available on record, the Bench noticed that the submissions as made by the ld. AR of the assessee for the delay of 82 days in filing the C.O. has merit and thus delay is condoned 5.1 During the course of hearing, the ld. AR of the assessee has prayed for withdrawal of the C.O. on the ground as under:- ‘’The assessee respectfully submits that he has opted to resolve the matter under the VivadSe Vishwas Scheme, 2024 introduced in Budget,2024. In further of this, the assessee has already filed Form 1 and Form 2 which is issued by the Income Tax Department under this Scheme.’’ The ld.AR of the assesee also prayed that though the assessee filed application for Vivad Se Vishwas Scheme 2024 yet in case of another reasons the dispute is not settled in Vivad Se Vishwas Scheme 2024, the assessee shall be at liberty to apply for restoration of the C.O. in accordance with law 5.2 On the other hand, the ld. DR did not raise any objection to the submissions made by the ld. AR of the assessee before the Bench. 5.3 After hearing both the parties and perusing the materials available on record, it is found that the assessee is himself interested in withdrawing the C.O. by settling the dispute, under Vivad Se Vishwas Scheme 2024, for which the DCIT , CIRCLE-7, JAIPUR VS VIVEK LODHA, JAIPUR Department has issued Form 2 to the assessee. Hence, we allow the withdrawal of the C.O. by the assessee on above count. 6.1 As regards the appeal of the Department, we also note that the Scheme provides Settlement of the C.O. of the assessee as well as appeal of the Revenue. However, as contended by the ld.DR that if dispute is not settled the Revenue may also have liberty to apply for restoration of the appeal in accordance with law 7. In the result, the appeal of the Department and C.O. of the assessee are dismissed as indicated hereinabove Order pronounced in the Open Court on 28-01-2025.