| Query | Assessee having both PAN and TAN filed an appeal before CIT(Appeal) against the order of DCIT u/s.271C in the month of March,2019. Appeal is still pending as on 31st January,2020. Assessee wants to opt VSVS. Please advise how and where information to be given as there is no provision of S.271C in the dropdown list of sections which assessee should select and upload the form. |
| Answer | In case of technical issues with respect to the portal, it is advisable to approach your designated authority under VSVA for further clarifications. In case no response is received the assessee is adviced to file writ petition before High Court .
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| Query | In the facts of the given case, the Appeal of the assessee company against the Order of ITAT was pending in the High Court (pending as on 31st January, 2020). Now the High Court has allowed the appeal of the assessee setting aside the Order of ITAT and restoring the Appeal of Department for decision afresh [Assessee was successful at the stage of CIT(Appeals)]. Now, the assessee company wants to avail of the DTVsV Scheme so as to give quietus to the issue. What would be the quantum of “Disputed Tax” – 100% or 50% (since, now the pending appeal in ITAT is that of the Department) in terms of Section 3 r.w. the First Proviso of DTVSV Act?? Please advise. |
| Answer | From, what we understand is that, the High Court has passed an order after January 31, 2020 for fresh adjudication and now the matter is pending before the ITAT. Since the order pending as on the specified date i.e. January 31, 2020 is already adjudicated upon. The assessee may not be eligible for VSAV. However may one may have to read the order of the High Court . Though it may be debatable one may contend that when High Court quashed the order of the Tribunal and set aside the matter back to the Tribunal , the departmental appeal is revived and it relate back to the date of filing . One may tray to settle the dispute by paying 50% tax in dispute . If department accepts the application , it will be conclusive and binding on the revenue and assessee. |
| Query | The CIT (A) deleted the said addition. The revenue filed appeal in ITAT about delay of 500 days. As the appeal was filed late by the revenue, to cover the delay, the Assessing Officer reopened the case u/s 148 and made the same addition which was made earlier by the ITO. I am of the opinion if original assessment is pending in appeal, the assessing officer cannot issue notice u/s 147/148 on the same issue and the same addition cannot be made again. Please give your opinion. Thanking You. |
| Answer | It is a well settled proposition in law that once the issue is subject-matter of appeal during the pendency of appeal, issuance of notice of reassessment has to be considered bad in law, as decided by the Hon'ble jurisdictional High Court in the case of Ador Technopack Ltd. [2004] 271 1TR 50 (Bom)(HC) which in turn was followed in the case of Metro Auto Corpn v ITO [2006] 286 ITR 618 (Bom) (HC). Order of the AO is merged with the order of the CIT(A) hence reassessment notice is bad in law . If notice is already issued you may have follow the due process of law filing detailed reply and thereafter filing writ petition to quash the notice issued under section 148 of the Act |
| Query | While filled up the Form 1 in Part E tax payment details in the space / box in respect of BSR Code, Date Challan Sr No & Amount I could not enter the data. Though I have alrady deposited some amount before filing the declaration |
| Answer | In case of any technical issue with the portal it is advisable to contact designated authority under the act and convey your grievances or may write to Baord . In case no respose is received one can approch the High Court by filing writ petition
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| Query | If we receive a car costing 4000000 in exchange of defective car costing 900000 will the received amount will be treated as gift and will be taxable |
| Answer | The provision for gifts are contained under section 56 (2) (x) of the Act, the said section refers the definition of property from 56 (2) (vii) of the Income tax Act, 1961 (Act). As per the explanation to 2nd proviso to section 56 (2) (vii) (c) of the Act, ‘property’ means immovable property being land or building or both; shares and securities; jewellery; archaeological collections; drawings; paintings; sculptures; any work of art; bullion; Since, the term “property” is specifically defined in the said provision and does not include “Car” or “Motor vehicle” as property, the principles of Generalia specialibus non derogant i.e. Specific provisions override the general provisions are attracted; therefore no other meaning for the term “property” can be attributed for the purpose of attracting income under the head “income from other sources”. (Refer Amartara v DCIT ( Mum) (Trib) ( ITA No. 6050/M/2016 /ITA No. 614 /Mum/ 2016 dt 29-12 2017 ( AY. 2012 -13) , dealing with section 45(3) and section 50C , the tribunal held that special provision of Section 45(3) override the general provision of section 50C of the Act ) Further, a movable asset held for personal effect is excluded from the definition of a Capital asset, as per 2 (14) (ii) of the Act. Therefore, the transfer should not attract Capital gains. Therefore, the difference in the value as per the transaction mentioned in the query would not be treated as a gift under the Scheme of Income- tax Act.
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| Query | Assessee main order is dismissed upto ITAT penalty order dismissed upto cit(A) but pending before ITAT. How much amount the assessee will pay. |
| Answer | From what we understand from your query is that there is a quantum appeal and penalty appeal. Assuming the quantum appeal is eligible for VSVA i.e. a deemed appeal exists on the specified date ie 31 -1 -2020 , upon declaring the same under VSVA, the declarant assessee will have to pay only the disputed tax amount, penalty would be waived and the penalty proceedings would also be settled. Further, 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. This has also been clarified at Question & Answer No. 8 in the Circular no. 9 of 2020 dated April 22, 2020 . Also refer question No 23 and 24 and answers where in the Board clarified that Q. If the due date of filing appeal is after 31-1 2020 the appeal has not been filed , will such case be eligible for Vivad Se Viswas ? Ans . yes Q. No . 24 . If the appeal is filed before High Court and is pending for admission as on 31-1 -2020 , whether the case is eligible for Vivad se Vishwas ? Ans . Yes. Also refer Q .No 20 which deals with when there is no disputed tax , however only penalty appeal is pending as on 31 -1 -2020 before Appellate Tribunal , the assessee can avail the benefit in case of disputed penalty / interest / fee are similar nature to terms in case of disputed tax
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| Query | A corporate assessee wants to opt VsV Scheme. Question Thanks Sir |
| Answer | It may not be desirable for the assessee to opting for VSV Scheme. Thee assessee has to pay the tax on the amount disputed in the appeal before the Appellate Tribunal . By opting the VSV Scheme the assessee may get the immunity for penalty and interests , however the assessee is liable to pay the tax as per the u/s 115JB of the Act . The assessee may also write to the Board for further clarification .
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| Query | If Original assessment order passed by AO contains a mistake apparent on record in one of the issues/ additions. Can assessee file application under the Vivad Se Vishwas Scheme and simultaneously Rectification Application u/s 154 to the A.O. The time limit for filing rectification has not expired. |
| Answer | Yes the assessee can make an application under section 154 of the Act. The assessee should request the Assessing Officer to pass the rectification order . After the receipt of the rectification order the assessee can avail the benefit of the VSVA on other issues which are pending before the appeal before the Commissioner Income- Tax ( Appeals)
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| Query | Taxpayer files declaration under VSV for a matter under appeal before ITAT with an amount payable say INR 15 lakhs. The designated authority while issuing certificate under section 5(1) of the Act, determines the amount payable as INR 20 lakhs. Taxpayer would not like to settle the dispute at INR 20 lakhs. Query: Section 4(2) deems the ITAT appeal to be withdrawn from the date when certificate is issued under section 5(1). In this case what would be the recourse to the taxpayer wrt to such deemed withdrawal of appeal since he shall not settle the dispute under VSV? |
| Answer | The querist can write to the designated authority rectify the tax calculation and issue fresh certificate . Further, there is no bar on refiling a fresh application under VSVA. If the calculation of tax is by the designated authority is not accordance with the scheme and the designated does not send a revised certificate the assessee can file writ before the Honourable High Court .
If the payment has not made within 15 days of issuance of Form 3 i.e. Certificate under 5(1) of the Act. the declaration under Form-1 shall be treated as void and shall be deemed never to have been made. Therefore, the appeal would not stand withdrawn. When the matter come up for hearing before the Appellate Tribunal the assessee can argue the matter on merit . |
| Query | Assessee files Return declaring total income of Rs. 35 Lacs. Addition made by AO by enhancing valuation of stock by 25 lacs. |
| Answer | From what we understand, as per Section 5(3) of VSVA, 2020, Every order passed under sub-section (1), determining the amount payable under this Act, shall be conclusive as to the matters stated therein and no matter covered by such order shall be reopened in any other proceeding under the Income-tax Act or under any other law for the time being in force. Further, making a declaration under this Act shall not amount to conceding the tax position and it shall not be lawful for the income-tax authority or the declarant being a party in appeal or writ petition or special leave petition to contend that the declarant or the income-tax authority, as the case may be, has acquiesced in the decision on the disputed issue by settling the dispute. |