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Facts
The assessee filed appeals before the CIT(A) for AY 2016-17 and 2017-18. The CIT(A) dismissed these appeals as withdrawn, holding that the assessee had filed a declaration under the Direct Tax Vivad se Vishwas Act, 2020 (VSVS). The assessee contended that their appeals were not covered under the VSVS declaration.
Held
The Tribunal found that the acknowledgement numbers of the appeals filed before the CIT(A) were different from those mentioned in the VSVS declaration. Therefore, the CIT(A) was incorrect in dismissing the appeals as withdrawn. The Tribunal remitted the appeals back to the CIT(A) for de novo consideration.
Key Issues
Whether the CIT(A) was correct in dismissing the appeals as withdrawn on the grounds that the assessee had opted for the VSVS scheme, when the appeals were allegedly not covered under the scheme.
Sections Cited
115JB, 143(3), 148, 147, Section 4(2), Section 5(1), Section 5(2), Section 6
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “G” BENCH, MUMBAI
Before: SHRI RAJ KUMAR CHAUHAN, JM
GTL Infrastructure Ltd. Commissioner of Income Tax 3rd Floor, Global Vision, Electronic (Appeals)/ NFAC/DCIT-3(4), Sadan 2 TTC Industrial Area, Aayakar Bhavan, M.K. Road, Vs. MIDC, Mahape, Navi Mumbai, Mumbai-400020. Thane - 400710. PAN : AACCG2107K Appellant) : Respondent) : Ms. Krupa Gandhi& Mr. Bhavya Appellant/Assessee by Jain-CA : Dr. Kishor Dhule, CIT-DR Revenue/Respondent by Date of Hearing : 06.06.2024 Date of Pronouncement : 10.06.2024 O R D E R Per Padmavathy S, AM: These two appeals by the assessee are against the order of the Commissioner of Income Tax (Appeals) / National Faceless Appeal Centre, Delhi [for short 'the CIT(A)] both dated 19.12.2023 for the AY 2016-17 & 2017-18. The common issued contended by the assessee in both these appeals is that the CIT(A) has erred in dismissing the appeal on the ground that the assessee has filed declaration under Direct Tax Vivad se Vishwas Act, 2020 (VSVS) for the impugned assessment years.
The assessee is a company engaged in the business of providing shareable infrastructure facilities on "Build, Own or Operate" basis for a diverse range of customers operating in telecom sector. The assessee filed the return of income for AY 2016-17 on 14.10.2017 declaring a loss of Rs. 5,06,72,26,168/- under the normal provisions of the Income Tax Act (the Act) and a book loss of Rs. 1067,29,28,590/- under section 115JB of the Act. For AY 2017-8 the assessee filed the return of income on 31.10.2017 declaring a total income of Rs. 7,03,18,000/- which was subsequently revised to a loss of Rs. 1231,91,65,787/- under the normal provisions of the Act. The assessee for AY 2017-18 declared a loss of Rs. 1924,70,45,844/- under section 115JB of the Act. The cases were selected for scrutiny and the statutory notices were duly served on the assessee. The Assessing Officer (AO) completed the assessment under section 143(3) of the Act for both the years assessing the income for AY 2016-17 at Rs. 497,44,87,500/- and for AY 2017-18 at Rs. 958,03,86,940/-.
Subsequently a notice under section 148 of the Act was issued for both the AYs stating that there are reasons to belief that the income chargeable to tax has escaped assessment and the assessments were re-opened accordingly. The AO while completing the reassessment under section 147 made an addition of Rs. 1,91,14,131/- for AY 2016-17 to both the income under normal provisions of the Act and also to the book profits under section 115JB of the Act. For the AY 2017- 18, the AO in the reassessment order made a disallowance of Rs. 278,01,51,710/-.
Aggrieved the assessee filed an appeal before the CIT(A). The CIT(A) dismissed the appeal as withdrawn by holding that – “2. During the course of appeal proceedings, the appellant submitted an application under the Direct Tax Vivad Se Vishwas Act, 2020 to adopt the scheme before the Designated Authority. i.e. Pr. Commissioner of Income Tax, Mumbai- 3. 2.1 In view of Section 4(2) of the Direct Tax Vivad Se Vishwas Act 2020, which for reference is produced below: - "Upon filling the declaration, any appeal pending before the Income Tax Appellate Tribunal or Commissioner of Income Tax (Appeals) in respect of the disputed penalty of disputed fee and tax arrears shall be deemed to have been withdrawn from the date on which certificate under subsection (1) of section 5 is issued by the designated authority." 3. In the light of the above provision, the appeal is deemed to have been withdrawn from 17.12.2020, the date on which certificate bearing No. 832660280171220 under sub-section (2) of Section 5 was issued on 11.03.2021 by the Pr. Commissioner of Income Tax, Mumbai -3. The appellant has paid amount to Rs. 0/- towards full and final settlement of tax arrear (i.e. 0/-) determined in the order. The request to withdrawn of the appeal is accordingly acceptable.
In the result, the appeal of the appellant is dismissed as withdrawn.” 5. The ld. Authorized Representative (AR) submitted that the findings given by the CIT(A) stating that the assessee has filed declaration under VSVS for the impugned appeal is factually incorrect. In this regard the ld. AR drew our attention to Form-1 filed under VSVS Scheme and also Form-5 which is the order of full and final settlement under VSVS to submit that the acknowledgement numbers for which the declaration under VSVS is as mentioned therein (page 1 & 2 of PB) are different from the acknowledgement number in Form 36 of the appeals filed before the CIT(A) for AY 2016-17 and 2017-18. The ld. AR therefore submitted that the assessee has not filed the declaration for the impugned appeals filed before the CIT(A) and therefore the CIT(A) is not correct in dismissing the appeal as withdrawn since they are declared as part of VSVS.
We heard the ld. Departmental Representative (DR) and perused the materials on record. The details of appeals pertaining to AY 2016-17 & 2017-18 declared under VSVS as per Form-1 is extracted below:
The orders for full and final settlement of tax arrear under VSVS in Form-5 for AY 2016-17 & 2017-18 are as given below:
We noticed from the perusal of the appeal filed before the CIT(A) in Form- 35 that the Acknowledgement No. of the appeal for AY 2016-17 is 601962550290422 and for AY 2017-18 is 602093040290422. A combined perusal of the above details makes it clear that the impugned appeals filed before the CIT(A) for both AY 2016-17 & 2017-18 are not covered under the declaration made by the assessee under VSVS. Therefore, we see merit in the submission of the ld. AR that the CIT(A) is not correct in dismissing these appeals as withdrawn. Accordingly, we remit the appeal bearing Acknowledgement No. 601962550290422 for AY 2016-17 and Acknowledgement No. 602093040290422 for AY 2017-18 back to the CIT(A) for a denovo consideration. Needless to say that the assessee be given an opportunity of being heard. It is ordered accordingly.
In the result, the appeal for AY 2016-17 & 2017-18 are allowed for statistical purposes.
Order pronounced in the open court on 10-06-2024. Sd/- Sd/- (RAJ KUMAR CHAUHAN) (PADMAVATHY S) Judicial Member Accountant Member *SK, Sr. PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. DR, ITAT, Mumbai 4. Guard File 5. CIT BY ORDER,