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Answers By Expert: Dr. K. Shivaram (Sr. Advocate)
Query

I filed form 1&2 then revised the same once. Now Department issued form 3. demand under form 3 was determined wrongly. how can i revised or rectify the same?

Answer

The Assessee can make an application for rectification or may file  a revised declaration .  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 , DA shall  be able to amend his order under section 5 to rectify any apparent errors . Please also  refer  CBDT  circular Q. No. 89 and answer given by the CBDT  . As per the clarification issued by the CBDT  ,Declaration filed by the CBDT can be revised any number of times before the DA issues a certificate under section 5(1) of Vivad se. Vishwas .

 

Query

Initially I received an intimation under section 143(1).In the intimation there an amount of 2,00,000/- higher than the returned income and there was an interest under section 234B and 234C in the said intimation. Later information sought by the department has been submitted and an assessment under section 143(3) has been completed. The learned AO completed the assessment without making any additions and accepted my original returned income. After an assessment, the computation is done without deleting the interest under section 234C but 234B interest deleted. The same interest mentioned in 143(1)(a) intimation carried even after assessment also. Kindly tell us possible reasons for non waiving of 234C interest.

Answer

The Tax calculated by the Designated Authority seems to be wrong .  The Assessee can make an application for rectification or may file revised declaration .  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 , DA shall  be able to amend his order under section 5 to rectify any apparent errors . Please also  refer  CBDT  circular Q. No. 89 and answer given by the CBDT  . As per the clarification issued by the CBDT  ,Declaration filed by the CBDT can be revised any number of times before the DA issues a certificate under section 5(1) of Vivad se. Vishwas .

 

Query

Can form 5 issued
Be canceled by income tax authorities and re issue form 3

Answer

Yes .  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 , DA shall  be able to amend his order under section 5 to rectify any apparent errors . Please also  refer  CBDT  circular Q. No. 89 and answer given by the CBDT  . As per the clarification issued by the CBDT  ,Declaration filed by the CBDT can be revised any number of times before the DA issues a certificate under section 5(1) of Vivad se. Vishwas .

 

Query

IN OUR CASE AN ORDER IS PASSED U/S. 201(1) DETERMINING AN AMOUNT OF RS. 2,05,00,000/- ON WHICH TAX SHOULD BE DEDUCTIBLE U/S. 195 OF THE ACT. WE HAVE FILED A RECTIFICATION APPLICATION WITH NECESSARY EVIDENCE BEFORE AO POINTING OUT MISTAKE IN THE FIGURE ADOPTED BY THEM AND IN ALTERNAE ALSO REQUESTED TO PROVIDE THE DOCUMENTS BASED ON WHICH SUCH FIGURE ARE WORKED OUT. IN THE MEAN TIME ALSO FILED FORM NO. 1 UNDER THE SCHEME. AO HAS REJECTED OUR APPLICATION WITHOUT ANY BASE AND ALSO NOT PROVIDED THE DOCUMENTS BASED ON WHICH FIGURE OF RS. 2,05,00,000/- IS ARRIVED. CAN WE CHALLANGE THE REJECTION ORDER FOR RECTIFICATION BEFORE CIT (A) AND ALSO OPT FOR VSV SCHEME. IF LATER ON CIT(A) HELD IN OUR FAVOUR FOR 154 REJECTION AND WE PAY THE AMOUNT AS DETERMINED BY DA WITHOUT CONSIDERING OUR RECTIFICATION THEN WHETHER SUCH EXCEES AMOUNT WILL BE REFUDABLE TO US?

Answer

Please refer  circular No . 9 /2020 dt 22-4 -2020--Q, No . 42 and answer   given by the CBDT,    which state that any amount paid in pursuance of a declaration made under the Vivad Se Vishawas shall not be refundable under any circumstances .  The assessee may write to the Designated Authority  stating the  tax is paid under protest as the  appeal is pending before the CIT (A)  against the rejection of application under section 154 of the Act. In case the assessee succeed in appeal , the assessee may approach for refund as the amount was paid under protest. In case the  refund is not granted the assessee may have to file writ before the High Court.

 

Query

I have submitted form 1 and 2 for three assesment years.i received form 3 for only one year.rest two years not received …what to do

Answer

Please write to the Designated Authority . It may be in process, the assessee may get the clarification .

Query

Thanks for answer given by your goodself to my query regarding applicability of this scheme where petition u/s 264 has been filed. I understand that the case is covered for filing declaration under the scheme. But the Designated Authority has rejected my declaration with the following reasons:
“The assessee has filed declaration on disputed tax determined u/s 143(3) r.w.s 147 wherein only Rs.515/- was added to the returned income, the assessee is in revision u/s 264 and has disputed the entire income assessed u/s 143(3) which included included returned income of Rs.687490/-. Since the declaration is factually incorrect, the same is being rejected.”

As already brought to you in my query, I have filed revision petition on the issue of income wrongly declared in the ITR on account of long term capital gain as the land sold was not a capital asset and only 50% share of sale consideration belong to assessee. The returned income was declared wrongly by the tax professional. In view of these facts, pl. guide whether the decision of the designated authority is as per Law. If not which remedy should be taken to avail the benefit of this scheme. THANKS FOR HOPING FOR EARLY REPLY.

Answer

Considering the facts of the assessee , it may be desirable to  argue the matter before the competent  Authority on merit.   Designated Authority under  Vsv  Scheme  cannot decide the issue on merit .  The view of the Designated Authority is in accordance with the law .

Query

Thanks for answer given by your goodself to my query regarding applicability of this scheme where petition u/s 264 has been filed. I understand that the case is covered for filing declaration under the scheme. But the Designated Authority has rejected my declaration with the following reasons:
“The assessee has filed declaration on disputed tax determined u/s 143(3) r.w.s 147 wherein only Rs.515/- was added to the returned income, the assessee is in revision u/s 264 and has disputed the entire income assessed u/s 143(3) which included included returned income of Rs.687490/-. Since the declaration is factually incorrect, the same is being rejected.”

As already brought to you in my query, I have filed revision petition on the issue of income wrongly declared in the ITR on account of long term capital gain as the land sold was not a capital asset and only 50% share of sale consideration belong to assessee. The returned income was declared wrongly by the tax professional. In view of these facts, pl. guide whether the decision of the designated authority is as per Law. If not which remedy should be taken to avail the benefit of this scheme. THANKS FOR HOPING FOR EARLY REPLY.

Answer

Considering the facts of the assessee , it may be desirable to  argue the matter before the competent  Authority on merit.   Designated Authority under  Vsv  Scheme  cannot decide the issue on merit .    The view of the Designated Authority is in accordance with the law .

 

Query

Dear Sir/Ma’am,

In my case, appeal is pending before ITAT & I have made declaration under Vivadh Se Vishwas Act, 2020 computing 25% of disputed tax payable but as per form 3 received from department, there is mismatch of tax amount payable as relief given by CIT(A) is not considered. And also for filing form 4, proof of withdrawal of appeal is required- how do I file it? Please provide the solution that in such case, what should be done.

Kindly do the needful.

Answer

Please refer CBDT circular  No. 21 /2002 dt 4 -12 2002, Q No 89 and Answer given by CBDT . As the answer given by the CBDT the assessee can file revised declaration any number of times before the DA issues a certificate under section 5(1) of Vivad Se Vishwas . The assessee may file revised declaration. . Please also  refer Circular No 9 of 2020 dated 22-4-2020 Q. No 43 . and answer  by the CBDT  wherein the CBDT clarified that  , where the assessee has made request for withdrawal   and such request is under process , proof of request made shall be enclosed . It is the designated  Authority has to issue the certificate . 

 

Query

I have applied in vivad se vishwas scheme. My penalty amount is approx 3cr the payment has to be done before 31/3/2021 if not then interest will be charged. My problem is if i give half payment of 1.5cr before 31/3/21 and half afterwards what will be interest percentage charge and on what amount it will be charge (the remaining amount or on the full penalty amount). Can i payment half amount before 31/3/21 and half after the above mentioned date

Answer

Please  refer Circular No 18 /2020 dt 28 -10 -20220 , circular in respect of payment of tax . As per the Circular the declarant can make the payment without additional amount on or before 31 St March , 2021    Please also refer Circular No 21 /2020 dt 4 -12 -2020.  Q.No. 87 . and Answer state that ,once the required amount of disputed penalty has been paid by the declarant  , interest relating  to such penalty would be waived . The issue being debatable the  declarant may not get the concessional rate as applicable , up to 31 -3 -2021 .  The half amount paid may not be considered as required amount

Query

Appeal is pending before CIT(A) for penalty u/s.271C.Assessee filed Form 1 and 2 through the option ” Whether the declaration relates to TDS Disputes u/s.194IA and 194IB”. Assessee’s dispute was related to S.271C and selected S.271 C giving other details correctly and received Form 3 from the designated authority. Question a) Whether the assessee will pay tax and submit Form 4 ? b) Whether the assessee will ignore the Form 3 so received and file Form 1 and 2 again using proper mode of filing

Answer

It is desirable to file revised form . Please refer Circular No. 21 /2020 dt 4 -12 -2020.  Q. No. 89 and Answer , wherein the Board Clarified that ,  the Declaration can be revised any number of times before the DFA issues a certificate under section 5(1) of Vivad Se Vishwas .