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Facts
The assessee filed an appeal against the order of the CIT(A) who dismissed the appeal as withdrawn, mistakenly believing the assessee had opted for the Vivad se Vishwas (VSV) Scheme for the assessment order. The assessee clarified that the VSV application was for a penalty order, not the assessment order, and sought condonation of delay in filing the appeal.
Held
The Tribunal condoned the delay in filing the appeal after the revenue conceded to the assessee's submissions. The Tribunal found that the CIT(A) had mistakenly dismissed the appeal as withdrawn based on an incorrect understanding of the VSV Scheme application.
Key Issues
Whether the CIT(A) erred in dismissing the appeal as withdrawn due to a mistaken application of the Vivad se Vishwas Scheme, and whether the delay in filing the appeal should be condoned.
Sections Cited
143(3), 271(1)(c), 250, 254, 154
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI B.M. BIYANI & SHRI PARESH M. JOSHI
आदेश/ O R D E R
Per B.M. Biyani, A.M.:
Feeling aggrieved by order of first-appeal dated 18.03.2024 passed by learned Commissioner of Income-Tax (Appeals)-Addl/JCIT(A)-2, Nagpur [“CIT(A)”], which in turn arises out of assessment-order dated 21.03.2013 passed by learned ITO-2(1), Bhopal [“AO”] u/s 143(3) of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2010-11, the assessee has filed this appeal on following grounds:
“1. That the Id. Addl/JCIT (A)-2, Nagpur has dismissed the appeal as withdrawn by erroneously considering Form 4 and 1 Form 5 of Direct Tax Vivad se Vishwas Scheme, 2020 filed in the case of penalty appeal u/s 271(1)(c) to the appeal filed u/s 143(3) of the act. 2.That since the grounds of appeal have not been adjudicated by the ld. ADDL/JCIT, the order is bad in the law.
3. The assessee craves leave, to add, alter, amend, delete or modify any or all grounds of Appeals as and when deemed to be expedient.”
2. There is a delay of 282 days in filing this appeal. Ld. AR for assessee drew our attention to the Application for Condonation of delay filed by assessee duly supported by affidavit. The asesseee’s application reads as under:
“Before Hon'ble Income Tax Appellate Tribunal Indore Sir/Madam, Reference: Ramesh Nanjundiah Devarayasamudram (PAN: ADUPD0388H) Subject: Prayer for condonation of delay in filing the appeal It is respectfully submitted that there has been a delay of appeal .... days in filing the present For AY 2010-11, an order was passed under section 143(3) by ITO-2(1), Bhopal, on 21-03-2013. The order was appealed before the Ld. CIT(A), who passed an order on 10-05-2016. The assessee then filed an appeal before the Hon'ble ITAT, Indore, which vide its' order dated 11-09-2019, remanded the case to the file of ld. CIT(A). The Commissioner of Income Tax, Appeal-ADDL/JCIT(A)-2, Nagpur, passed an erroneous order under section 250 r.w.s. 254 of the Income Tax Act on 18-03- 2024, Dismissed the appeal as Withdrawn on the ground that the assessee had opted for the Vivad Se Vishwas (VSV) Scheme, 2020 and had paid the corresponding tax. The above order of CIT(A) is erroneous as no application under Vivad se Vishwas Scheme had been filed with respect to the subject matter of the appeal, which was against the assessment order u/s 143(3) dated 21.03.2013 for AY 2010-11.
Page 2 of 5 The assessee had filed an application for the Vivad Se Vishwas (VSV) Scheme, 2020 in respect of the penalty order u/s 271(1)(c) of the Act. The Commissioner of Income Tax, Appeal-ADDL/JCIT(A)-2, Nagpur, had mistakenly considered the application under the Vivad se Vishwas Scheme, 2020 in respect of the penalty-order while disposing off the appeal in respect of the assessment-order. Aggrieved by the order dated 18-03-2024, a rectification request was filed under section 154 before Commissioner of Income Tax, ADDL/JCIT (A)-2, Nagpur on 04-04-2024. However, as no response was received, another follow-up letter was filed on 25-10-2024 before Principal Commissioner of Income Tax -1, Bhopal, Copy of same are enclosed herewith. Unfortunately, no response has been received till date. Left with no option, the assessee is now filing the appeal before the Hon'ble ITAT. Therefore, it is respectfully requested that the delay of...........days in filing this appeal be please be condoned.”
The above application of assessee was deliberated with reference to the documents held on record. The facts as mentioned in application are found correct and the Ld. DR for revenue is convinced with the submission of assessee. Faced with this situation, the delay is condoned and the appeal is taken for adjudication on merit.
Ld. AR next carried us to the adjudication made by Ld. CIT(A) in impugned order, reading as under:
“5. DECISION:
The appellant has opted for DTVSVS, 2020 and has requested for withdrawal of present appeal. The appellant has submitted the requisite documents as required to claim the benefits of VSVS 2020.
In view of the above, the appeal is being decided as per provisions of the Direct Tax Vivad Se Vishwas (DTVSVS) Act, 2020. It is also noted that the Page 3 of 5
Form No. 5 of Direct Tax Vivad Se Vishwas Scheme was issued by the designated authority ie. concerned Pr. CIT on 21.03.2022 certifying full and final settlement of the tax arrears determined in the case of appellant.
In light of these facts, the appeal is hereby DISMISSED AS WITHDRAWN.”
Ld. AR submitted that the CIT(A) has, due to oversight and mistakenly, considered that the asesese has gone for settlement under DTVSV, 2020 against assessment-order. He referred Page No. 5 of impugned order where the CIT(A) has re-produced Form No. 5 of DTVSV, 2020 in which there is a clear mention of “Disputed penalty” having been settled. Therefore, the dismissal of first-appeal by CIT(A) is inadvertent and wrong. Ld. AR prayed to re-store this appeal to the file of CIT(A) for a fresh adjudication.
Ld. DR for revenue agreed to the submission of Ld. AR but requested to direct the assessee to ensure participation before CIT(A).
Considering the submissions of learned Representatives, we remand this matter back to the file of CIT(A) for adjudication afresh. The CIT(A) shall give necessary opportunity of hearing to assessee and pass an appropriate order in accordance with law. The assessee is also directed to ensure participation in the hearings as may be fixed by CIT(A) and do not seek unnecessary adjournments. Ordered accordingly.
Resultantly, this appeal is allowed for statistical purpose.
Order pronounced in open court on 26/09/2025