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Income Tax Appellate Tribunal, CIRCUIT BENCH, VARANASI
PER VIJAY PAL RAO, J.M. This appeal filed by the assessee is directed against the order dated 9.9.2021 of CIT(A) (National Faceless Appeal Centre, Delhi), arising from the re- assessment order passed under section 143(3) r.w.s. 147 for the assessment year 2014-15. 2. There is a delay of six days’ in filing the present appeal. The assessee has filed the application for condonation of delay. 3. We have heard the learned AR as well as learned DR and considered the reasons explained by the assessee in the application for condonation of delay reproduced as under:- “ CONDONATION OF DELAY” In relation to the aforesaid matter, time limit for filing the appeal against the first appellate order dated 09.09.2021 was due to expire on 08th November, 2021 as per the provisions of section 253(3) of the Act, however, the challan required towards appeal filing fees inadvertently remained to be deposited by the office staff and the same was deposited
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on 12.11.2021, thereafter, sets were prepared after getting it signed from the authorized representative of the appellant HUF, which were sent for being filed in the registry of Hon’ble ITAT on 12.11.2021. However, the person who has gone for submitting the appeal sets in the registry of the Hon’ble ITAT was informed that the office is closed due to functioning of virtual Bench of Hon’ble ITAT from Lucknow.” 4. Thus, it is clear that the assessee has explained the delay that the limitation to file the appeal was due to expire on 8th November, 2021 but the challan required towards appeal filing fee inadvertently remained to be deposited by the office staff and the same was deposited on 12.11.2021. Thereafter, the appeal was finally filed on 15.11.2021. We further note that the limitation was extended by the Hon’ble Supreme Court in Suo Moto Writ Petition (C) No. 3 of 2020, vide order dated 23.03.2020 and subsequent orders. Accordingly, we condone the delay of six days’ in filing the present appeal. The assessee has raised the following grounds:
“1. Because the ex-parte order dated 09.09.2021 passed by the Ld. CIT(A) was wholly erroneous, as the same had been passed under mis-conception that the dispute had already been settled, under Direct Tax Vivad Se Vishwas Scheme. 2. Because the Ld. CIT(A) has erred in law and on facts, in dismissing the appeal (filed by the appellant on 12.02.2021) through an ex-parte order dated 09.09.2021, as infructuous, under sub-section (2) of section 4 of the Direct Tax Vivad Se Vishwas Act, 2020, on a wholly wrong premise that (a) the appellant had already opted for Vivad Se Vishwas Scheme, vide application dated 19.01.2021; (b) the said application filed by the appellant /assessee had been accepted (by Pr. CIT, Central, Lucknow by issuance of Form 5 dated 22.04.2021; and (c) accordingly, the appellant had deposited tax amounting to Rs. 7,64,762/- as directed vide certificate no. 221475850200121 dated 20.01.2021. 3. Because the dispute that had been settled under DTVSVS related to the assessment order dated 28.12.2016 passed originally under section 143(3) by the ld. Income Tax Officer, Ward-2(2), Varanasi and the issue involved in the 1st appeal related to an altogether different issue, as had been raised in terms of re- assessment order dated 30.12.2020 passed by the ld. Assistant Commissioner of Income Tax, Central Circle, Varanasi under section 147 r.w.s 143(3) of the Act, 2
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brief resume of the relevant dates and events are enclosed herewith as Annexure- 1 hereto. 4. Because the appellant had opted for settlement of it’s dispute under Vivad Se Vishwas Scheme for the issue that had been pending for adjudication, before Hon’ble ITAT in ITA No.53/VNS/2019 for the Assessment Year 2014-15, which had arisen, in consequence of appellate order dated 28.12.2018 passed by the ld. CIT(A), Varanasi, in an appeal against the regular assessment order dated 28.12.2016 [passed earlier by the ld. Income Tax Officer, Ward-2(2), Varanasi under section 143(3) of the Act] in relation to an issue relating to addition of Rs. 61,42,646/- by treating “long term capital gain” (disclosed by the appellant) as bogus, under section 68. 5. Because the order appealed against is contrary to the facts, law and principles of natural justice.”
The learned AR of the assessee has submitted that the original assessment under section 143(3) was passed by the AO on 28th December, 2016, whereby the addition of Rs. 61,42,646/- was made on account of Long Term Capital Gain by invoking the provisions of section 68 of the Income Tax Act. The assessee challenged the original assessment order and filed appeal before the CIT(A) and thereafter, the matter was carried to this Tribunal in ITA No.53/VNS/2019. In the meantime, the assessee opted for Vivad Se Vishwas Scheme, 2020 to settle the tax disputes arising from the original assessment order passed under section 143(3) against which the appeal was pending before this Tribunal. This Tribunal, vide order dated 24th March, 2021 allowed the assessee to withdraw the appeal and consequentially the appeal of the assessee was dismissed as the tax dispute involved in the said appeal was settled under Vivad Se Vishwas Scheme, 2020.
The learned AR has thus submitted that in the re-assessment order, the AO has made another addition on the issue of declaring the presmptive income under section 44AD, vide order dated 30th December, 2020 which was challenged by the assessee by filing the appeal before the CIT(A). However, the CIT(A) has dismissed the appeal of the assessee in limine on the ground that the assessee has 3
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already opted for Vivad Se Vishwas Scheme and Form No. 5 was issued by the designated authority. The learned AR has submitted that the dispute under Vivad Se Vishwas Scheme, 2020 was only with respect to the addition made by the AO in the original assessment order passed under section 143(3) dated 28th December, 2016 and not the dispute regarding the addition made by the AO under section 44AD of the Income Tax Act in the reassessment order. Thus he has pleaded that the matter may be set aside to the record of the ld. CIT(A) for deciding the appeal of the assessee on merits. 7. On the other hand, the learned DR has relied upon the impugned order of the ld. CIT(A). 8. We have considered the rival submissions as well as relevant material on record. The ld. CIT(A) has dismissed the appeal of the assessee arising from reassessment order dated 30th December, 2020 on the ground that the assessee has opted for Vivad Se Vishwas Scheme, 2020 to settle the dispute on and the Designated Authority has issued Form No. 5 of 22.4.2021. Accordingly, the appeal of the assessee was rejected in limine without deciding the same on merits. As it is manifest from the record that the assessee has opted for Vivad Se Vishwas Scheme, 2020 to settle the dispute towards the tax liability arising from the original assessment order passed under section 143(3) and appeal against which was pending before this Tribunal in ITA No. 53/VNS/2019. The said appeal of the assessee was dismissed as withdrawn by this Tribunal vide order dated 24th March, 2021 on the ground that the assessee has already opted for Vivad Se Vishwas Scheme, 2020 to settle the tax disputes. The relevant part of the order dated 24.03.2021 is as under:- “At the very outset, it was noticed that assessees at Sl. No. 38 to 42, 44, 54, 55, 58 and 73 to 76 of the cause title have submitted applications, vide which it has been submitted that the Income Tax Department has issued certificate in Form No. 3 under Vivad Se Vishwas Scheme. Therefore, the 4
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assessees want to withdraw the appeals. For Sl No. 1 to 37, 43, 45 to 53, 56, 57, 59 to 72 and 77 to 115 of the cause title, the ld. Counsel on behalf of the assessees have appeared and submitted that the Income Tax Department has issued certificate in Form No. 3 under Vivad Se Vishwas Scheme. Therefore, they want to withdraw the appeals. The ld. D.R. has no objection. Accordingly, we permit the assessees to withdraw the appeals.”
Accordingly, the addition made by the AO in the reassessment order passed under section 147 r.w.s. 143(3) on 30th December, 2020 creating an additional tax liability which was disputed by the assessee before the ld. CIT(A) by filing an appeal was not part of the settlement of tax dispute under Vivad Se Vishwas Scheme, 2020. Hence, in the facts and circumstances of the case, we set aside the impugned order of the CIT(A) and the matter is remanded to the record of the CIT(A) for deciding the appeal of the assessee on merits of the issue which was involved in the reassessment proceedings and challenged by the assessee. The appeal of the assessee is allowed for statistical purposes. 9. In the result, the appeal of the assessee is allowed for statistical purposes. Order was pronounced in the open court after a conclusion of hearing on 07.07.2022, in the presence of both the parties. Sd/- Sd/- [RAMIT KOCHAR] [VIJAY PAL RAO] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 07/07/2022 Varanasi Sh Copy forwarded to: 1. Appellant-Sujit Kumar Agrawal (HUF) 2. Respondent-ACIT, C.C., Varanasi 3. CIT(A),Varanasi 4. CIT 5. DR By order Sr. P.S. 5