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

154 petition pending before Assessing officer assessee filed vsv and AO rejected the 154 petition can assessee file appeal before CIT (A) on November and go for vsv.
Answer

No, the rectification order passed by the AO is not before the Specified date i.e. January 31, 2020. Therefore a deemed appeal nor appeal against the same exists on the specified date. Therefore, the same is not eligible for VSVA.
Query

If the quantum is pending before CIT(A) and the assessing officer passed 271(1)(c) can assessee go for vivad se viswas only for penalty.
Answer

No. Kindly refer to FAQ No. 8 of CBDT Circular 9 of 2020 dated April 22, 2020 wherein it is clarified that it would not be possible for the appellant to apply for settlement of penalty appeal only when the appeal on disputed tax related to such penalty is still pending.
Query

Dear Sir,

The assessee filed return of income declaring loss under both normal provisions and section 115JB of the Act.

The AO made additions under normal provisions. However, due to availability of b/f losses, the tax payable under normal provisions was Nil.

The AO also made additions to book profit and determined a book profit on which MAT is payable. Accordingly demand ha been raised.

The assessee filed appeal before CIT(A) for additions made under the normal provisions (Additions to book profits were not contested before the CIT(A)). The CIT(A) order was passed against the assessee.

The assessee filed appeal before the ITAT and the same is pending before the ITAT as on 31.01.2020. The assessee has also filed additional grounds before the ITAT in respect of the additions made to the book profit. The appeal is pending as on date.

The assessee wishes to file under VsV and c/f reduced losses under the normal provisions.

Queries:

1. Whether the assessee can file under the VsV scheme for the additional grounds raised before ITAT which have not been raised before CIT(A).

2. If yes, do the assessee need to file separate applications under VsV, one for normal provisions and other for book profit additions.

Request your valuable views on above.

Answer

Yes the assessee can file  under VsV. In Jehangir H.C. Jehangir v ITO (2015) 229 Taxman 392 (Bom) (HC) held that issue specifically taken before the AO could not be refused to be considered by Tribunal merely because the CIT (A) did not have any view on it. Order of Tribunal was set aside. Accordingly, the Querist can avail the benefit of VSVA. In respect of all the issues pending before the Tribunal In All Cargo Global Logistics Ltd. v. Dy. CIT (2012) 16 ITR 38 (SB)(Mum.)(Trib.)  the SB held that, a pure question of law arises for which facts are on record of the authorities below, the question should be allowed to be raised if it is necessary to assessee the correct tax liability. Revenue has challenged the order of Special Bench before the High Court on other grounds and not on the issue of admission of additional grounds. CIT v. All Cargo Global Logistics Ltd. (2015) 374 ITR 645 (Bom.)(HC)

Accordingly, the assessee can avail the benefit of the scheme in respect of entire appeal which is pending before the ITAT. 

 

The assessee has to file one application only , however  the tax in dispute in the appeal has to be settled .

 
Query

IF an appeal in ITAT has been dismissed and a fresh appeal in High Court is yet to be filed(time limit ends after 31-1-2020, hence eligible), what should be written in Appeal reference number/acknowledgement number in Schedule A VI ? If kept blank, the Form is not accepted.
Please suggest.
Answer

There is a provision for deemed appeal in the VSV Form No. 1. Once the same is selected the criterion for reference number/ acknowledgement number should automatically cease.  Once appeal is filed the assesee will get the lodging No , till the final No is allotted .If the problem still persists it is advisable to contact your designated authority under VSVThere is a provision for deemed appeal in the VSV Form No. 1. Once the same is selected the criterion for reference number/ acknowledgement number should automatically cease.  Once appeal is filed the assesee will get the lodging No , till the final No is allotted .If the problem still persists it is advisable to contact your designated authority under VSV
Query

During a Tribunal hearing, I told the learned judges that the appellant had already submitted an application under the Vivad se Vishwas Scheme. The learned judge directed me to write an email to the Hon’ble ITAT, attaching the VsV application, in accordance with a particular judgement of the Madras High Court. Please let me know which judgement he was referring to, and the procedure, if any, laid down in the said judgement.
Answer

We are not aware of any judgement of the Madras High Court on the issue of VSV. We have made an request to  President of Revenue Bar Madars  to find out any judgment on the Vsv. If we get the judgment we will give the reference in our answer .
Query

AO added 12.5% of the bogus purchase to total income for AY 2009-10, AY 2010-11, AY 2011-12, AY 2012-13.

CIT (A) Dismissed the appeal AY 2011-12 and AY 2012-13
(order passed in 18.05.2018)

ITAT partly allowed for AY 2011-12 and 2012-13
(Reduced the Percentage of addition from 12.5% of Bogus Purchase to 5%)(ITAT order passed on 19.12.2018)

CIT (A) heard the appeal for AY 2009-10 and AY 2010-12 and on the basis of ITAT order for AY 2011 & 2012, partly allowed from 12.5% to 5% (date of Order 22.02.2019)

Assessee unaware of any appeal being pending received ITAT notice for hearing AY 2009-10 & AY 2010-11 for ITAT appeal filed by Department.
Unfortunately Notice received after the date of hearing 27.10.2020

No Detail received from Department yet on the said appeal by Department.

ITAT Case Status shows that the appeal was filed on 29.05.2019
since assesses dont have any detail of said appeal and he being eligible for VSV for AY 2009-10 & AY 2010-11 .

can he get the advantage of 50% of the Disputed Tax since he has a favorable judgment from ITAT on similar issue.
Answer

The assesssee can write to the Asst .Registrar  ITAT and can get the copy of the grounds of appeal filed by the department .  It seems  the  department may be contesting the relief given by the CIT (A) . The asessee can take advantages of 50% of the disputed tax .   If  Tribunal has already decided the matter ex prate   against the assesseee,  it may be desirable to file a  miscellaneous application   before the Appellate Tribunal and matter can be recalled . After recalling the matter the assessee can avail the benefit of the scheme .

.
Query

Hello

Assesses appeal before ITAT was heard on 27.01.2020 and order was pronounced on 10.02.2020.

Is Assessee still eligible for VsV scheme?
Answer

As soon as  the scheme  was announced the asssessee could have made a request in writing stating that  they intend to avail the benefit of the schme .  Unfortunately No, unless the assessee has communicated to the ITAT the intention to avail the Scheme.  As per Rule 34 (4) of the ITAT Rules, 1963, after hearing the appeal the order has to be pronounced and signed in the Court. Till the order is pronounced and signed the appeal is considered as pending before the Tribunal. On the facts it may be debatable whether  the  assessee can avail the benefit of the Schme . The Hon’ble Supreme Court, in the case of Chattisgarh State Electricity Board v.s Central Electricity Regulatory Commission & Ors. AIR 2010 SC 2061 held that the date of pronouncement shall be notified in the cause list and that shall be a valid notice of pronouncement of the order. The Hon’ble Supreme Court in the case of ITAT v. V.K Agarwal (1999) 235 ITR 175 (SC) held that unless order of a Bench is signed by all Members constituting it and is dated, it is not an order of Tribunal.

 

The date of hearing is not relevant; it is the date of signing and pronouncement date. In Pradeep K. R. Sangodker v. State of Goa & Anr.2007 (1) AIR Bom R 80, Ajay Singh and Anr and etc. v. State of Chhattisgarh and Anr. AIR 2017 Supreme Court 310. The Courts have held that judgment has to be pronounced in open Court, signed and dated.

 

On the facts the appeal of the assessee was pending on the date specified date i.e. 31 -1 -2020.  It would be advisable to apply under the Scheme.If department accepts it is final . In case of any rejection, one may approach the Hon’ble High Court by filing a Writ Petition.

 
Query

I have received the Form 3 duly approved but i am not able to locate form 4 on the income tax e login web page.

Regards
Answer

Form 4 is proof of payment. The same is available on the portal. In case of any inconvenience it is advisable to contact your designated authority under VSVA.
Query

Rectification order u/s 154 for AY 2012-13 has been passed by the Income Tax Authority on 24/01/2020. Can we avail the benefit of Vivad Se Vishwas scheme for that AY against Rectification Order
Answer

Yes. The revised order can be settled under VSVA

 
Query

Marriage took place in 2015. Thereafter, due to disputes, divorce of the couple was finalized by the court in September 2019. The court gave jewellary to the girl as per the list finalized by the court. The list of jewellary contains some jewellary given by the relatives of the girl at the time of marriage and some jewellary was given by the bridegroom parents, etc. Now, the girl wants to sell this jewellary and from the amount received from the sale of jewellary wants to purchase the house in a foreign country.

1. I want to know whether the sale of jewellary is liable to long term capital gain keeping in view the base year 2015 by applying indexation.
2. Whether the funds can be utilized for purchase of property outside India and can take benefit u/s 54.
Please guide me.
Answer

The same will be subject to long term capital gain with the benefit of indexation. Benefit of section 54F  will be available if the assessee satisfies the conditions therein. The seller cannot get the benefit of section 54F or section 54   in respect of  investment made for buying a residential  house  at   abroad . Law is amended   by the Finance  ( No .2 ) Act , 2014  w.e.f 1-4 -2015   as per the amended law  investment made in residential house in India is only eligible for exemption . After paying the  capital gains tax the surplus can be utilised for purchasing the  house abroad subject to RBI guidelines and law of respective country .