Advocate Shashi Ashok Bekal has complimented the CBDT for its proactiveness in clarifying the doubts of taxpayers. However, he has pointed out that certain important doubts have still not been clarified. He has requested the CBDT to take a liberal view regarding these issues and issue a speedy clarification. He has assured that a timely clarification would not only help tax payers and the taxman but will also play a role with respect to achieving the desired results for the administration
The Vivad se Vishwas (VSV) Scheme was announced by Union Finance Minister Nirmala Sitharaman during her budget speech on February 1, 2020. This has been introduced as a way to reduce the pendency of litigation under the Income tax Act, 1961 (Act) with a golden shake hand. Pursuant to that, the administration has come up with amendments and clarifications to ensure smooth implementation of the Scheme. An ordinance was issued extending the last date for beneficial payment, when the lockdown on account of the global pandemic seemed to threaten the success of the Scheme.
The important dates – The Direct tax Vivad Se Vishwas Act, 2020 are as under:
|1.||January 31, 2020||Specified date as defined under the VSV Act, 2020|
|2.||February 1, 2020||The Union Finance Minister Nirmala Sitharaman during her budget speech on February 1, 2020 (2020) 420 ITR 115 (st) (146) proposed to introduce a scheme at para 126 of the speech.|
|3.||February 5, 2020||The Bill is formally presented before the Parliament.|
|4.||February 12, 2020||The Cabinet approved certain amendments with a view to widen the scope of the Bill.|
|5.||March 4, 2020||Central Board of Direct Taxes (‘CBDT’) vide Circular No. 7 of 2020 provided clarifications on provisions of VSV in the form of FAQs.|
|6.||March 4, 2020||VSV Bill, 2020 passed in the Lok Sabha|
|7.||March 5, 2020||Press Release: CBDT issues FAQs on Direct Tax Vivad se Vishwas Scheme, 2020.|
|8.||March 13, 2020||VSV Bill, 2020 receives a nod from the Rajya Sabha|
|9.||March 17, 2020||VSV Bill, 2020 receives a nod from the President|
|10.||March 17, 2020||VSV Act, 2020 comes into force|
|11.||March 18, 2020||VSV Rules, 2020 are notified|
|12.||March 24, 2020||The Finance Ministry vide Taxation and other Laws (Relaxation of Certain Provisions) Ordinance, 2020 extended the last date for beneficial payment under VSVA.|
|13.||April 22, 2020||CBDT issues Circular 9 of 2020, thereby Circular 7 of 2020 stands withdrawn.|
|14.||June 30, 2020||Cut-off date for beneficial payment under the VSV Act, 2020 extended by Finance Ministry in view of COVID-19. (previously the date was March 31, 2020)|
The Central Board of Direct Taxes (CBDT) vide Circular dated April 22, 2020 bearing no 9 of 2020 has withdrawn the previous Circular dated March 4, 2020 bearing no 7 of 2020. The former Circular was issued prior to the enactment of the Direct tax Vivad Se Vishwas Act, 2020 (VSVA) bearing the subject ‘Clarifications on provisions of the Direct Tax Vivad se Vishwas Bill, 2020’. After introduction of the Bill in Lok Sabha, several queries were received from the stakeholders seeking clarifications in respect of various provisions contained therein. The administration had considered these queries and had decided to clarify the same in form of answers to frequently asked questions (FAQs) vide the earlier Circular.
With the Bill receiving legislative sanction and subsequently, the assent of the President on March 17, 2020; it became imperative to extend the implications of the clarifications to the Act as well, to avoid any undesirable consequence.
Therefore, the Circular No. 7 of 2020 has been reissued as Circular No. 9 of 2020 with the following modifications:
- ‘Vivad se Vishwas’ referred to Direct Tax Vivad se Vishwas Bill, 2020 in Circular No 7 of 2020. However, in this circular it refers to The Direct Tax Vivad Se Vishwas Act, 2020;
- Since clauses of the Bill have now become sections in the ‘Vivad Se Vishwas’, the reference to “clause” in Circular No 7 of 2020 has been replaced with “section”;
- Reference to declaration form in Circular no 7 of 2020 has been replaced with referencing of relevant form, since rules and forms have now been notified; and
- Answer to question no 22 has been modified to reflect the correct intent of the law. It has now been clarified that where only notice for initiation of prosecution has been issued without prosecution being instituted, the assessee is eligible to file declaration under Vivad Se Vishwas. However, where the prosecution has been instituted with respect to an assessment year, the assessec is not eligible to file declaration for that assessment year under Vivad se Vishwas, unless the prosecution is compounded before filing the declaration.
Although there is no substantial change or clarification brought by this new Circular, the proactiveness of the administration during such difficult times deserves to be appreciated. VSVA is a well drafted piece of legislation and considering its vitality on the judiciary and economy, this administration has made sincere efforts to ensure its smooth implementation with amendments and circulars. On account of the lockdown, the Finance Ministry vide Taxation and other Laws (Relaxation of Certain Provisions) Ordinance, 2020 dated March 24, 2020 inter alia extended the date for beneficial payment under VSVA from March 31, 2020 to June 30, 2020.
However, practical challenges which require clarifications are emerging and there is still no clarity on these issues. Some of the key issues are as under:
- As per 2ndProviso to Section 3 of VSVA “Provided further that in a case where an appeal is filed before the Commissioner (Appeals) or objections is filed before the Dispute Resolution Panel by the appellant on any issue on which he has already got a decision in his favour from the Income Tax Appellate Tribunal (where the decision on such issue is not reversed by the High Court or the Supreme Court) or the High Court (where the decision on such issue is not reversed by the Supreme Court), the amount payable shall be one-half of the amount in the Table above calculated on such issue, in such manner as may be prescribed”
The assessee is not given shelter of a Supreme Court judgement or jurisdictional High Court judgement, which is not of the assessee but having identical facts.
All decisions of the Hon’ble Supreme Court are binding over all lower Courts and Tribunals as per Article 141 of the Constitution of India. Similarly, All the decisions of the Hon’ble High Court are biding over all lower Courts and Tribunals within its jurisdiction as per Article 227 of the Constitution of India. Ipso facto, this proviso can be construed to be ultra vires the Constitution.
- Where an appeal is filed before the ‘specified date’ as per the VSVA along with an application for condonation of delay. The application for condonation of delay has not been allowed yet. In such an instance, will the assessee be allowed to settle the matter under VSVA?
- Where there is an appeal pending before the Commissioner of Income tax- Appeals on the specified date. Can an assessee file a rectification under section 154 of the Act after the specified date to rectify an error apparent from the Order of the Assessing Officer? (Q. 25 of Circular No. 9 of 2020 only envisages a situation where the rectification application is also pending on the ‘specified date’)
- Where the Department has preferred an appeal before the Income tax Appellate Tribunal (ITAT) and the same has been allowed; subsequently the assessee files a miscellaneous application under section 254 of the Act before the Tribunal and the same is pending. Firstly, is the assessee eligible to opt under the VSVA? Secondly, will the matter be considered as an assessee’s appeal or a departmental appeal?
- Similar to 3. Where the Department has preferred an appeal before the Hon’ble High Court and the same has been allowed; subsequently, the assessee files a review petition before the same High Court. Firstly, is the assessee eligible to opt under the VSVA? Secondly, will the matter be considered as an assessee’s appeal or a departmental appeal?
- Whether a taxpayer will be permitted to file second declaration where first declaration gets disqualified due to any reason-say, non-payment of disputed tax under section 5(2) of VSVA, due to financial difficulty?
- Suppose there is patent error in the certificate issued under section 5(1) of VSVA by the Designated Authority (DA) and is later on rectified by DA, whether period of 15 days for making payment shall be reckoned from date of rectified order?
A clarification to these above questions would not only help tax payers and the taxman but will also play a role with respect to the scope of VSVA. A liberal view to these questions would increase the number of declarations by many folds thereby improving the chances of achieving the desired results for the administration. Thus, with more than 5 weeks for the last date for beneficial payment, a circular clarifying these issues would be a WIN-WIN situation for the tax payer and tax man.
Articles for reference:
- Controversies Of Vivad Se Vishwas Scheme And Possible Reasons For Its Failure by CA Shivangi Samdhani
- Vivad Se Vishwas Scheme: The Law, Procedure And Dilemma by Mr. Shashi Ashok Bekal, Advocate
- Vivad Se Vishwas Scheme -Quick Fix version 3 Requiredby Mr Paras Savla and Mr Harsh Shah, Advocates
- Amendments to the Direct Vivad Se Vishwas Bill 2020: Major improvement but minor lacuna remainsby Mr. Shashi Ashok Bekal, Advocate
- Vivad Se Vishwas Scheme : Comparison with KVSS and compilation of Judgementsby Ms. Neelam Jadav, Advocate
- Tax Counsel Explains intricacies of “Vivad Se Vishwas Schemeby Mr. Firoze Andhyarujina, Senior Advocate
- FAQ on the Direct Tax Vivad Se Vishwas Bill, 2020By CAs Ketan Ved, Urvi Mehta & Shraddha Jain
- “Vivad Se Vishwas” Scheme: Is It A Penalizing Or Pardoning Tax Regimen?by CA Nidhi Surana Jain
- Analysis of The Direct Tax Vivad Se Vishwas Bill, 2020by CA Ashish Chadha
- The Direct tax Vivad Se Vishwas Bill, 2020 by Dharan V. Gandhi (2020) The Chamber’s Journal – Feb- P. 87
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