| Query | THE ASSESSEE HAD RECEIVED FORM 4 FOR DEPOSIT OF PAYMENT DUE. HOWEVER DUE TO FINANCIAL PROBLEMS PAYMENT COULD NOT BE DONE. WHTHER THE EXISTING APPEAL WILL BE REVIVED AUTOMATICALY OR ANY APPLICATION HAVE TO BE MOVED FOR REVIVAL OF APPEAL. |
| Answer | The assessee has to verify whether the appeal is pending or already order has been passed . If the order is passed the assessee has to make an application for restoration of appeal . If the appeal is pending for hearing, the notice has not yet received, the assessee has to contest the appeal on merit . In case the details of form no 4 is filed before the Appellate Authority , the assessee may intimate to the appellate Authority stating that the assessee has not paid the tax as per the scheme , hence the appeal may be decided on merit , file the written submission before the CIT(A) and also request for an opportunity of hearing .
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| Query | Sir, We had filed appeal for which we opted for VSVS Scheme, Form 5 has been received and the Payments have been made in full. Appeal withdrawal has also been received. In the Order Penalty u/s 271 F was initiated for not filing the income. The same still remains valid or Section 6 r.w.r Section 5 of VSVS Rules/Act will be applicable? In the scheme no penalty if scheme is availed. Please clarify whether penalty is leviable. |
| Answer | The assessee has to furnish reply on merit , what was the reasonable cause for not filing of the return as per section 139 (1) of the Act . As per section 273B penalty is not leviable if the assessee proves that there was reasonable cause . Please refer Circular No . 21/2020 dt .4th December , 2020. ( 2020) 421 ITR 1 ( St) Q.No . 80 . Whether appeal against penalties that are not related to quantum assessment like penalty u/s 271B 271BA , 271DA of the Act etc. are also waived upon settlement of appeal relating to ‘ disputed tax ‘ ? Ans : No , appeal against such penalty order is required to be settled separately
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| Query | Respected Sir/Ma’am, as the assesse consultant done wrong calculation w.r.t deposition of taxes with additional 10% interest(paid after due date i.e. September 30, 2021) and the assesse has deposited wrong taxes and submitted form 4. The form 4 is now rejected. Is there any way out so that the assesse gets relief because there is not fault of assesse? |
| Answer | Declaration can be revised any number of times before the DA issues a Certificate under section 5(1) of Vivad Se Vishwas . Please refer question No Circular No. 9 /2020 dt 22 -4 2020 Q.No. 46 . Whether DA can amend his order to rectify any patent errors .? Ans . Yes , the DA shall be able to amend his order under section 5 to rectify any apparent errors . It may be desirable to file rectification before Designated Authority to rectify the mistake . The assessee can explain that it was due to human error. In case the Designated authority does not rectify the assessee can file a writ before the High Court. High Court has the power under Articles 226/ 227 of the Constitution of India , to direct the Designated Authority to accept the payment made by the assessee . |
| Query | I went for VIVAD SE BISWAS SCHEME where will my Certificate no.5 will be sent, as i have not received as yet. where can i view it. Is their option to see this on IT portal. |
| Answer | The assessee is requested to write to the Designated Authority. If no reply is received within a reasonable time the assessee may approach High Court by filing writ petition .
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| Query | There was a mistake in order u/s 143(3) passed by AO. Assessee filed an appeal on other grounds( before the CIT(A) and ITAT and subsequently OGE was passed by AO giving effect to the orders of CIT(A) & ITAT. Timelimit for filing rectification application passed. Can Assessee or AO file rectification petition against ITAT order for the purpose of rectifying mistake in order 143(3){for the matter not covered in appeals} if timelimit for filing rectification u/s 154 against ITAT order is not yet completed. |
| Answer | The rectification application u/ s 254 (2) of the Act can be filed only in respect of mistake in the order of the Appellate Tribunal . It has to arise from the order of the Appellate Tribunal . |
| Query | Whether the assessment can be opened for the years in which assessee has opted under DTVSV Scheme in case of retrospective amendment of disallowance of education cess while computing Business income, wherein Education cess was not the covered matter under VSV.Whether due to amendment, assessment can be opened to disallow the claim of education cess. |
| Answer | In Sudhir S.Mehta ( 2003 ) 265 ITR 548 (Bom) (HC) the Court held that where amending law received assent of President subsequent to date of Tribunal’s order , on the basis of retrospective amendment , the Tribunal’s order cannot be said to suffer from mistake apparent from record . As per section 5 (3) of the Direct Tax Vivad Se Vishwas Act , 2020 the order shall be conclusive and such order shall not be reopened in any other proceedings under the Income -tax Act or under any other law ----- . Accordingly the due to amendment , the assessment settled under DTVSV cannot be reopened . In Pravin Kumar Bhogilal Shah v. ITO ( 2012 ) 66 DTR 236 ( Guj) ( HC) , Vinayak Construction v.ITO ( 2012 ) 66 ITR 233 ( Guj) ( HC) , Ganesh Housing Corporation Ltd v. Dy.CIT ( 2013) 350 ITR 131 ( Guj) (HC) the Court held that reassessment based on retrospective amendment is not valid . |
| Query | challans have been fully paid still however Form 5 has not bee received what should we now do. Notice of penalty is issued due to non submission of Form 5 |
| Answer | The assessee may write to the Designated Authority to issue the Form no 5. In case no response is received with in 15 days the assessee may write to the Chairman CBDT . Even after writing to CBDT no response is received with in 15 days the assessee may file writ before the High Court. It is desirable to write detailed explanation to drop the penalty proceedings on law and facts . In case penalty is levied it is desirable to file an appeal before the CIT (A).
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| Query | Sir, in my case form 5 has been issued by CIT, thereafter i received a notice from department for rectification u/s 154 for enhancement of tax and interest on the mistake apparent from record. Mistake pointed out by department is correct. Can the department enhance the demand after issuance of form no. 5 ? Kindly assist. A quick response is highly appreciable. |
| Answer | Any Authority which has passed the order has inherent power to rectify the mistake apparent from the record . When the Act does not prescribe any time limit to pass the rectification order , it has to be within a reasonable time The error has to apparent from record. Debatable issues cannot be rectified as held by the Supreme Court in T.S.Balaram , ITO v. Volkart Bros (1971) 82 ITR 50 (SC) . |
| Query | We have paid 25% of penalty tax by availing Vivaad Se Vishwas Scheme. |
| Answer | The assessee has to move an application before the Tax Bench of the High Court for withdrawal of appeal giving the details of appeal No , tax paid and certificate received from the competent authority . The said application also be served on the Assessing Officer who has jurisdiction over the assessee. The matter will be taken up before the High Court and thereafter the High Court will pass an order accepting the request of the assessee. It is not necessary that the assessee has to engage a lawyer . The assessee can appear in person and withdraw the appeal . However the considering the prescribed procedure to be followed and now it is virtual hearing it may be desirable to engage a service of a Lawyer who appears regularly before the Tax Bench .
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| Query | Assessed receive order under section 143 3 and filled his form 35 for appeal and assessing officer sent to form to CIT ANY REPLY WAS NOT YET RECEIVED ONE QUESTION IS MY QUARY IS IN WHICH SECTIONS ARE IMMUNITY OF THE SCHEME |
| Answer | Section 6 of The Direct Tax Vivad Se Vishwas Act , 2020 deals with immunity from initiation of proceedings in respect of offence and imposition of penalty in certain cases . Penalty which are related to quantum of assessment will get the immunity . Please refer Circular No Q. no 80. And answer . which reads as under: Q. No. 80. Whether appeal against penalties that are not related to quantum assessment like penalty u/s 271B,, 271BA , 271DA of the Act etc . are also waived upon settlement of appeal relating to ‘disputed tax’ ? Answer: No, appeal against such penalty order is requited to be settled separately .
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