HARSHA SHAH,DELHI vs. ITO, WARD-59(3), NEW DELHI

On the facts and circumstances of the case and in law, the Ld. CIT-A has grossly erred, in dismissing appeal of the assessee stating that "Assessee has opted for Vivad se Vishwas Scheme, accordingly such appeal is treated as infructuous as per the Direct Tax Vivad Se Vishwas Act,2020" without appreciating the facts that assessee has opted for Vivad se Vishwas Scheme and in such a case no penalty shall be levied on the assessee, however, Ld. AO ignoring such facts passed order imposing penalty on the assessee and Ld. CIT-A has dismissed the appeal without going through the ground of appeal and providing any opportunity of being heard to the assessee.

On the facts and circumstances of the case, the penalty order passed under section 270A of the Act is time barred and passed without apricating the statutory time limit prescribed under section 275 of the Act and therefore such order is erroneous and bad in law.

The ld. counsel of assessee submitted that the Ld. CIT-A has grossly erred, in dismissing appeal of the assessee stating that "Assessee has opted for Vivad se Vishwas Scheme, accordingly such appeal is treated as infructuous as per the Direct Tax Vivad Se Vishwas Act,2020" without appreciating the facts that assessee has opted for Vivad se Vishwas Scheme and in such a case no penalty shall be levied on the assessee, however, Ld. AO ignoring such facts passed order imposing penalty on the assessee and Ld. CIT-A has dismissed the appeal without going through the ground of appeal and providing any opportunity of being heard to the assessee. He further submitted that therefore penalty may kindly be cancelled.

Replying to the above, the ld. Senior DR supported the order of the authorities below. However, he did not controvert that the coordinate bench of ITAT Delhi by order dated 25.01.2021 in ITA No. 393/Del/2019 for same AY 2015-16 has dismissed appeal of assessee as withdrawn under Vivad se Vishwas Scheme 2020. Therefore, when the matter has been settled under said scheme then no penalty is leviable on the assessee u/s. 271(1)(c) of the Act and hence the penalty is cancelled only on this count.

In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 18.07.2023. (PRADIP KUMAR KEDIA) (CHANDRA MOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 18th July, 2023. NV/-