| Query | i am v.saroja holding pan aqxpv6174d. My husband had to recieve Rs.24,60,191 refund amount through vivad se viswas scheme. after he passed away i was chosen as legal heir. but my refund is not processed. i have already filed form 4 and recieved form 5. so i filed a grievance in cpgrams. even though i havent recieved my refund. i request the department to look into this issue. |
| Answer | Please make an application addressing to Chairman CBDT . If no response is received , please a writ before the High Court. High Court will direct the department to issue the refund order.
|
| Query | Penalty notice received even after filling under vivad se viswaas , vsv form 5 also received,what to do now |
| Answer | The assessee has to intimate to the ,, Designated Authority / Assessing Officer stating that the assesee has availed the benefit of Vivad se Vishwas Scheme , enclose the form no 5 , details of tax paid and request for drop the penalty proceedings . The Assessing Officer will drop the penalty proceedings . Section 6 of The Direct Tax Vivad Se Vishwas Act, 2020 reads as under “ Subject to the provision of section 5 , the designated authority shall not initiate any proceeding in respect of an offence ; or impose or levy any penalty ; or charge any interest under the Income -tax Act in respect of tax arrear “
|
| Query | The assessee has not filed return of income. Assessment was completed by making an addition of Rs.9,61,000.The assessee availed Vivad se Vishwas paid taxes received Form. No.5. Penalty under section 271F of Rs. 5,000/- levied. In the scheme no penalty if scheme is availed. Please clarify whether penalty is leviable. |
| Answer | 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 The assessee has to file an appeal against the levy of penalty and has to contest on merit .
|
| Query | my clients filed appeal u/s 264 of income tax act for the assessment year 2015-16 and 2016-17. and i have filed vivad se vishwas application within time but application is rejected with the reason that appeal filed with in no time limit. but my appeal is still pending in department and there is no rejection of appeal |
| Answer | The assessee has only remedy of filing a writ before the High Court . High Court may condone the delay in filing the revision application u/s 264 and direct the Designated Authority to accept the declaration filed by the Assessee. In CIT v. Shatrusailya Digvijaysingh Jadeja (2005) 277 ITR 435/ 147 Taxman 566/ 197 CTR 590 (SC) rendered in the context of similar provisions of KVSS, 1998, referring the judgement In the case of Dr. Mrs. Renuka Datla v. CIT (2003) 259 ITR 258 (SC) has held on interpretation of section 95(i)(c) that if the appeal or revision is pending on the date of the filing of the declaration under section 88 of the Scheme, it is not for the DA to hold that the appeal/revision was 'sham', 'ineffective' or 'infructuous'. In the case of Raja Kulkarni v. State of Bombay AIR 1954 SC 73, the Supreme Court laid down that when a section contemplates pendency of an appeal, what is required for its application is that an appeal should be pending and in such a case there is no need to introduce the qualification that it should be valid or competent. Whether an appeal is valid or competent is a question entirely for the Appellate Court before whom the appeal is filed to decide and such determination is possible only after the appeal is heard but there is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent, e.g., when it is held to be barred by limitation. From the mere fact that such an appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the Court.
|
| Query | The order wherein final demand was settled was passed on 21.12.2020. The Assessee filed Form 1 & 2 for VSV on 29.12.2020. However, refund of another year was adjusted with the outstanding demand vide above mentioned order. The Assessee inadvertently ignoring the amount of refund adjusted made payment of tax disputes under VSV. Please guide on how to take refund from the Income Tax Department. Have visited the Assessing Officer, but no further action from their side. |
| Answer | The assessee may write to the Designated Authority to rectify the tax determined and refund of excess amount paid . In case no response is received within a reasonable time, the only remedy is to file writ before High Court .
|
| Query | With regard to the replacement of machinery claimed as revenue expenditure by the assessee but treated as capital expenditure in the assessment by the assessing officer. The issue is pending before appeal. If the dispute is settled Under VsVs scheme can the assessee claim consequential depreciation in respect of that asset in subsequent years taking into account sec 8 of the VsVs act 2020 |
| Answer | When the Assessing Officer treated the revenue expenditure as capital expenditure , he ought to have allowed the consequential depreciation . In. CIBA India Ltd v. CIT 1993)202 ITR 1/114 CTR 105/ 70 Taxman 505 (Bom.) (HC) the court held that when the expenditure is held to be capital expenditure the Tribunal ought to have allowed consequential depreciation on capital expenditure . |
| Query | WE RECEIVED FORM 5 FROM CIT IN THE MONTH OF SEPTEMBER 2021 BUT YET NOT RECEIVED REFUND. I WANT TO KNOW WHAT IS THE FURTHER PROCESS AFTER RECEIVING FORM 5? |
| Answer | Please write to the Designated Authority. In case no reply is received within reasonable time , the assessee may file writ before the High Court .
|
| Query | As per form No.5 issued by the department about one year back, I am entitled for refund of Rs.2.5 lacs. However, till date the refund has not been received. Grievance was also filed in the CPGRAM portal about 7 months back but refund is still pending. Please suggest me remedy for the same |
| Answer | The assesseee can file writ before the High Court . The assessee may also write to Shri S.R Wadhwa Chairman Representation committee of the AIFTP ,who is interacting with the BOAD on day to day basis as regards the functioning of portal . His email is , wadwasr@hotmail.com or aiftpho@gmail.com
|
| Query | In the month of Sept., 2021, I have filed form No.4 after making the payment of taxes and form No.4 can be downloaded from the portal. However, till date form No.5 has not been issued. Not only it, portal still shows “Issue form No.4”. What is the remedy? |
| Answer | The assessee may write to the Designated Authority . If no response is received with in reasonable time , the asseessee may write to the Chairman CBDT .If no response is received the assessee may have to file writ before the High Court . The assessee may also write to Shri S.R Wadhwa Chairman Representation committee of the AIFTP ,who is interacting with the BOAD on day to day basis as regards the functioning of portal . His email is , wadwasr@hotmail.com or aiftpho@gmail.com
|
| Query | Assessee has withdrawn 4 appeals in Feb 21 filed in ITAT on the fact taking these in VSVS option . Itat allowed the withdrawn in Feb 21 by passing orders. Can restoration is permissible after 10 months u/s 254 of itact? Or under Itat rules. |
| Answer | The assessee can make an application under section 254(2)) of the Act , for restoration of appeal . The application for restoration may have to be made expeditiously . The period of limitation is prescribed under the Income tax Act is not applicable for restoration of appeal as per VSVS Act. In E. Sankaran v. ITO (2021) 279 Taxman 180 (Mad.)(HC) Bhimaas Engineering and Projects Pvt Ltd v. Dy CIT ( 2021) 430 ITR 519 ( Mad) (HC) , Ind Mark Properties P .Ltd v. ACIT ( 2021) 430 ITR 500 ( Mad) (HC) the Court held that the assessee was to be given liberty to restore appeal in event ultimate decision to be taken on declaration filed by assessee under section 4 was not in favour of assessee .
|