PARAMESWARAN BASHKAR,CHENNAI vs. ITO, INTERNATIONAL TAXATION WARD-1(1), CHENNAI

PER MANOMOHAN DAS, J.M:

This appeal by the assessee is directed against the order of the learned Commissioner of Income-Tax (Appeals)-16, Chennai [CIT(A)] dated 07-07-2023 passed u/s. 154 of the Act and pertains to the Assessment Year [AY] 2015-16. The grounds of appeal of the assessee are as under:

“1. The order of the CIT(Appeals) - 16 dated 07.07.2023 vide DIN & Order No. ITBA/COM/M/17 /2023-24/1054221469(1) for the above

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mentioned Assessment Year is contrary to law, fact and in circumstances of the case.

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of the Act revived the order passed by the ld. CIT(A) dated 09-08-2018

vide which the ld. CIT(A) had dismissed the appeal of the assessee

through an ex-parte order.

non-resident. He filed his return of income for the AY 2015-16 on 06-

10-2016 admitting a total income of Rs.2,50,250/-. The return was

processed u/s 143(1) of the Act on 15-10-2016. Subsequently, the

case was selected for ‘Complete Scrutiny’ through CASS. Statutory

notices served upon the assessee and the assessee responded to

such notices.

capital gains to the tune of RS. 83,70,827/- and accordingly claimed

deduction u/s. 54F of the Act. The assessee also claimed that he

invested an amount of Rs. 2,50,00,000/- by purchasing of a villa house

out of the proceeds of the sale of plot of land.

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submissions of the assessee rejected the claims of the assessee. The

ld. AO vide order dated 30-12-2017 completed the assessment and

added Rs.83,70,827/- by disallowing the claim of the assessee under

the head ‘Log Term Capital Gains’. The ld. AO also added

Rs.12,10,943/- as income from other sources on account of

purchasing of a villa house including other disallowances.

CIT(A). The ld. CIT(A) vide order dated 28-01-2018 dismissed the

appeal of the assessee. The ld. CIT(A) passed an ex-parte order as

the assessee after filing of the appeal did not attend the hearing as per

notices served upon him. The ld. CIT(A) vide this ex-parte order

confirmed the order of the ld. AO.

assessee filed appeal No. ITA 2962/Chny/2018 before the Tribunal.

The assessee pleaded before the Tribunal that the impugned appeal

was decided without giving an opportunity and sought at least one

effective opportunity of being heard before the ld. CIT(A). The Hon’ble

Tribunal accepted the pleadings of the assessee and vide order dated

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27-04-2021 set aside the ex-parte order passed by the ld. CIT(A) and

remitted the issue back to the ld. CIT(A) for fresh decision.

heard the appeal afresh on merit and disposed of the appeal in favour

of the assessee vide order dated 27-06-2022.

112/Chny/2022 before the Tribunal for rectification of certain mistakes

which were apparent in the order of the Hon’ble Tribunal. The

Department submitted that the Hon’ble Tribunal passed the order for

fresh examination by the ld. CIT(A) after the assessee had filed

Declaration in Form No. 1 and 2 of Direct Taxes Vivad Se Viswas Act

of 2020 on 31-03-2021 and the Commissioner of Income Tax,

International Taxation, Chennai had also passed order u/s 5(1) of

DTVSV Act, 2020 in Form No. 3 on 21-04-2021. The Hon’ble Tribunal vide order dated 04th November, 2022 dismissed the Miscellaneous

Application of the Department on the submission of the assessee that

he has settled the disputed demand under that VSVS, 2020.

No.2/Chny/2023 before the Tribunal stating that the matter was not

resolved under VSVS Act, 2020, but the proceedings reached finality

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in view of the order of the ld. CIT(A) dated 27-06-2022 as was passed

in the remand proceedings. The Hon’ble Tribunal vide order dated 21-

02-2023 dismissed the MA of the assessee observing that it was

academic in nature as the order of the ld. CIT(A) attained finality due

to non-filing of any appeal by the Revenue against that order of the ld.

CIT(A).

Tribunal vide order dated 21-02-2023, the ld. AO vide letter dated 27-

04-2023 requested the ld. CIT(A) for rectification of the order dated 27-

06-2022 passed by the ld. CIT(A) in ITA No. 24/CIT-16/2021-22. The

ld. AO, inter alia, cited the reasons for rectification of the order of the

ld. CIT(A) that the assessee failed to inform the ITAT about the

exercise of option to avail the benefit of VSVS 2020 while the ITAT

passed order for fresh examination of the appeal of the assessee by

setting aside the ex-parte order dated 27-06-2022 of the ld. CIT(A).

The ld. AO further stated that no appellate forum or arbitrator,

conciliator or in the declaration in respect of which an order has been

made under sub-section (1) of section 5 by the designated authority or

the payment of sum determined under that section etc. Thus, the ld.

AO invited the attention of the ld. CIT(A) that the order passed by the

ld. CIT(A) is erroneous as no order could be passed when Form No. 3

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is issued and requested the ld. CIT (A) to rectify his order dated 09-08-

2018 passed in compliance to the order of the Tribunal for fresh

examination of the appeal of the assessee.

AO and vide order dated 07-07-2023 and under section 154 of the Act

revived the order dated 09-08-2018 by holding that the appeal of the

assessee raised therein are dismissed. The ld. CIT(A) also ordered

that the assessee cannot avail the benefit of DTVSV Act, 2020. The ld.

CIT(A) observed that the order passed on 27-06-2022 was based on

false evidence. The Hon’ble ITAT was not made aware of fresh facts

while passing its first order on 27-04-2021, on which basis, my order

was passed. As the Hon’ble ITAT order passed on 27-04-2022, was

passed on the basis of incomplete information, my order passed on

27-06-2022, also becomes an order based on a mistake apparent from

record. Thus, grounds of appeal raised by the appellant as ground of

appeal Nos. 1 to 15 are dismissed. The order passed by CIT(A)-16

vide order No. 54/CIT(A)-16/2015-16 on 09-08-2018 stands revived.

No relief is allowed to the appellant. The appellant misutilized the

provisions of DTVSV Act, 2020 and therefore, he cannot avail the

benefit of DTVSV Act, 2020 also.

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the Tribunal.

materials on record. The Ld. AR submitted that the order dated 27-06-

2022 passed by the ld. CIT(A) has attained the finality as there was no

appeal against that order by the Revenue. Accordingly, the ld. CIT(A)

cannot revive his order dated 09-08-2018 under section 154 of the Act

which was not a mistake apparent from record. On the other hand, the

Ld. DR supports the order passed under section 154 of the Act.

perused the materials on records. We observe that the Department did

not file any appeal against the order dated 27-06-2022 passed by the

ld. CIT(A) in compliance to the remission of the case by the Hon’ble

Tribunal. The ld. CIT(A) disposed of the appeal on merit. As no appeal

was filed by the Revenue against that order of the ld. CIT(A) dated 27-

06-2022, the same has attained the finality and binding on both the

parties. Therefore, it is our considered opinion that the appeal filed by

the assessee against the order of the ld. CIT(A) passed under section

154 of the Act has to be allowed. Accordingly, we set aside the order

of the ld. CIT(A) dated 07-07-2023 passed u/s 154 of the Act.

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Order pronounced on 19th January, 2024.

Sd/- Sd/- (मंजुनाथ. जी) (मनोमोहन दास) (Manjunatha. G) (Manomohan Das) �ाियक सद�/Judicial Member लेखा लेखा सद�य लेखा लेखा सद�य सद�य /Accountant Member सद�य चे�ई/Chennai, �दनांक/Dated: 19th January, 2024. EDN/-

आदेश क� �ितिलिप अ�ेिषत/Copy to: 1. अपीलाथ*/Appellant 2. ,-थ*/Respondent 3. आयकर आयु./CIT 4. िवभागीय ,ितिनिध/DR 5. गाड( फाईल/GF