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

I have received form 3 from DA determining correct tax payable. However, I cannot find any optiom to file form 4 online. Please guide

Answer

Please approach your designated authority. The designated authority  cannot reject the application , without giving an opportunity of rectifying the mistake or defects if any in the form or procedural irregularities . If the application is rejected without giving an opportunity for rectifying the defects , one may approach the High Court by filing writ petition .

 

Query

An amount recieved by individual from its HUF is Taxable under section 56(2)(x) if IT Act, 1961

Answer

A member of the 'HUF' has a pre-existing right in the family properties. A Coparcener has a pre-existing right and interest in the property and can demand partition also, however, the other members of the 'HUF' have right to be maintained out of the 'HUF' property. On division, the share in the estate/capital of the 'HUF' cannot be treated as income of the recipient,rather, the same will be a capital receipt in his hands. Accordingly the amount received by the assessee from the 'HUF', being its member, it is a capital receipt in his hands and is not exigible to tax.     In  Pankil Garg v. PCIT (2019) 178 ITD 282 (Chd.)(Trib.),www.itatonline.org the Tribunal held that the amount received as gift from 'HUF', being its member, is a capital receipt not liable to tax . 

 

Query

Is an amount Recieved by the individual from its Huf taxable under sec 56(2)(x) of IT Act, 1961.

Answer

A member of the 'HUF' has a pre-existing right in the family properties. A Coparcener has a pre-existing right and interest in the property and can demand partition also, however, the other members of the 'HUF' have right to be maintained out of the 'HUF' property. On division, the share in the estate/capital of the 'HUF' cannot be treated as income of the recipient,rather, the same will be a capital receipt in his hands. Accordingly the amount received by the assessee from the 'HUF', being its member, it is a capital receipt in his hands and is not exigible to tax.     In  Pankil Garg v. PCIT (2019) 178 ITD 282 (Chd.)(Trib.),www.itatonline.org the Tribunal held that the amount received as gift from 'HUF', being its member, is a capital receipt not liable to tax . 

 

Query

Assessing officer had passed the order in the month of October-2019 and we have filed appeal before the CIT on 22.02.2020 through online. And due to not available of some documents for filing of condonation of delay we have not filed physically before the CIT. Now my query is whether I can file declaration application under section 3 of VSV Act, 2020 and can I avail the benefits of the VSV scheme?

Answer

One may to find  out when the assessment order was received by the. As the appeal was  filed on 22-02 2020 , it is desirable to file an application for condonation of delay  by filing an affidavit and explanation for condonation of delay  Once delay is condoned , the appeal relates back the due date of filing of  an appeal .  Accordingly the assessee can avail the  benefit of the scheme. The assessee should approach the  CIT (A) with the request to take up the matter for an  early hearing of application for condonation of delay . In case CIT (A) rejects the application for condonation of delay , the assessee should file an appeal before Tribunal and request for early hearing of the appeal . The Tribunal will take up the application  for early hearing . Once the Tribunal decides the issue of condonation of   delay and send the matter to CIT (A) to decide the matter on merits , the assessee can avail the benefit of the scheme . 

 

Query

there seems to be no provision in the drop down for int levied under Section 201.

does that mean the int levied under this secion does not fall under the perview of VSV

Answer

Please refer Circular No 9 of 2020 dt 22-04 -2020   question and answers , Nos , 15, 30 , 31 and 32  answers given therein  which clarifies that on satisfying certain conditions  the disputed interests can be settled . If there is any difficulty in finding the required provision in the drop down, it is advisable to contact your concerned Designated Authority with your issue.

Query

The assesse has been issued a show cause notice u/s279(1) of the income tax act asking for an explanation as to why prosecution u/s278B should not be initiated on account of failure to deposit TDs on time .
Section 9 of the Scheme of the VSV act provides for certain exceptions wherein the provisions of the Scheme would not apply. – One of them being in
Cases in which prosecution under the Act has been instituted on or before the date of declaration.
Since the Prosecution has still not been instituted the assesse is trying to opt for relief under the VSV scheme but is unable to do so as the drop down in the form is not facilitating the exercise of this option. Please advice .

Answer

Yes, your understanding is correct. The assessee is eligible to avail the benefit under VSVA, the same is also clarified by CBDT Circular 9 of 2020 dt 22-04 2020.  Q. no 22   Ans . Where only notice for initiation of prosecution has been issued without prosecution being institutedthe assessee ieligible to file declaration under Vivad se Vishwas. Howeverwhere the prosecution has been instituted with respecto an assessment yearthe assessee is not eligible to file declaration for that assessment year under Vivad se Vishwasunless thprosecution is compounded before filing the declaration. 

Regarding any shortcomings on the portal it is advisable to approach your concerned Designated Authority with your issue.  

 

Query

Refund to be received as per Form -3 received from PCIT (Appeal pending with CIT(A),
now while filing form-4, should I simply file form-4 without mentioning anything.

1. NO tax is payable – challan details Not applicable.

2. No proof of withdrawal required to be filed when appeal pending with CIT(A)- Automatic withdrawal of appeal.

3. Refund determined in form-3 not received- should I file form-4 or wait till refund????

that mean I need to file blank form -4 and refund will be processed after all forms of VSV is completed…please confirm my understanding?????

Answer

The information about refund due has to be mentioned . After getting certificate the intimation  is to be given to CIT (A) who will pass the consequential order . It may be desirable to wait till the receipt of refund order .  One may consider approaching designated authority for further clarification .

Query

I have received from 3 from PCIT for VSV form filed for Appeal Case pending before CIT(A).

While filing form 4, Proof of withdrawal of Appeal is required to be filed with form 4, when appeal is pending before CIT(A).

Answer

No, as per Section 4(2) of VSVA, upon the filing the declaration, any appeal pending before the Commissioner (Appeals) shall be deemed to have been withdrawn from the date on which certificate is issued by the designated authority. After receipt of certificate one may have to intimate to the CIT (A)  who will pass consequential order .

 

Query

WHILE FILLING V V APPLICATION FORM THERE IS A DROPDOWN WINDOW FOR INDICATING UNDER WHICH SECTION ORDER IS MADE.BUT 234E AND 206 ARE THERE.BUT IN FAQ 234E IS INCLUDED.HOW TO PROCEED

Answer

Please write to designated authority asking for clarification or to make necessary changes in the  form or portal .  If no response is received within reasonable time  one may approach the High Court by filing writ petition .

Query

Respected Sir,
I am facing an issue in filing Form 1 of Vivad se Vishwas Scheme.
As per FAQ’s released by CBDT on 22.04.2020, it was clarified by Q 29 that credit for earlier taxes paid against disputed tax shall be allowed. After giving effect to taxes paid against disputed tax, net amount payable/ (refundable) by the declarant is determined.
In Form 1 – Part E, details related to payments against tax arrears are required to be filled. For the same, we need to fill the date of payment of tax, BSR Code and amount.
In my case there is TDS credit which can be adjusted against disputed tax. However, there is no option available in the Form to fill the TDS Credit. It cannot be filled in Part E as there is no date of payment or BSR Code for TDS credit.
Thus, I wanted to know under which Schedule details of TDS credit can be filled. Can TDS credit be adjusted while mentioning disputed tax in Schedule I of the Form.?

Answer

If form no 26AS shows the credit , the assessee can adjust the credit . It may  desirable  to  approach the designated authority asking for clarification . If designated authority does not respond  with in  a resobale time the assessee may approach High Court by filing Writ petition.