SUJIT KUMAR AGRAWAL (HUF),VARANASI vs. ACIT, CC, VARANASI

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.

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.

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 brief resume of the relevant dates and events are enclosed herewith as Annexure- 1 hereto.

Because the order appealed against is contrary to the facts, law and principles of natural justice.”

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 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.

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