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

We have to file an application under vivad se vishwas scheme for demand in TDS cases. Order u/s 200A/201(1)/201(1A), and Penalty order u/a 271C, but when we file the application these sections are appearing in portal(means where it is asked to furnish the details of order passed under section….there these sections are not available. How should we proceed.

Answer

The assesee or its representative should approach their respective designated authority. In case no response  is received one may approach the High Court by filing writ petition .

Query

Can I still go for Vivad se Vishwas scheme when the CIT (A) has passed the order in May, 2020. Appeal was filed in 2015.

Since the Appeal was pending with CIT(A) on the designated date, i.e., 31-01-2020.

Kindly clarify.

Answer

If the CIT (A) has passed the ex parte order without giving an opportunity of hearing , the assessee should file an  rectification application before the CIT(A) to rectify the order . The assessee can also file an appeal to Tribunal on the grounds of violation of principle of natural justice and make an application for an early hearing of appeal .If the Tribunal set aside the appeal to CIT (A) to decide the appeal on merits giving an opportunity of hearing the assessee  can avail the benefit of the scheme.  One has to consider whether the  assessee has given an intimation to the CIT (A) in writing that the assessee  is desirous of  availing the benefit of the scheme still the  order was passed by the CIT (A) one may approach the High Court by  way of writ petition . 

Query

Recently, FM announced that the date of payment of disputed tax etc. without extra payment under the scheme has been extended till 31.12.2020. My question is whether the date of filing of online Form 1 has also been extended or that remains till June 30?

Answer

The date of filing & beneficial payment under VSVA was extended to June 30, 2020 vide Finance Ministry issues Taxation and other Laws (Relaxation of Certain Provisions) Ordinance, 2020 dated March 24, 2020; However, as per the press release dated May 13, 2020, the extension to of beneficial payment is extended to December 31, 2020. As  the scheme it self is extended till 31 -12 -2020 , the date of filing Form 1 is also extended . We are expecting one more ordinance or Clarification from the Board .

Query

While uploading encountering error, Furnish Valid amount in case of search cases” where i am furnishing declaration relating to non-search case.

What values are required to be submitted as it is neither accepting Zero nor Blank.

Thanks

Answer

Please contact the designated authority , they will clarify . Many such difficulties are faced by the assesses the authorities may rectify the mistake or may issue the clarification at the earliest.

Query

The assessee fulfills all the criterias for filing of declaration under VSV Act.
However, in Feb, 2020 assessee received a summon from SEBI Special Court Mumbai for same issue which was involved in appeal. As per the notice the his attendance was enforced to answer a charge u/s 26(1) r.w.s 24(10 and section 27 of SEBI Act, 1992 r.w.s.193 of Code of Criminal Procedure for Violation of section 129A) of SEBI Act and Regulation 3(a), (b) , (c), (d) and Regulation 4(2)(a), (e) of SEBI (Prohibition of Fraudulent and unfair trade practices).
Will assessee still be eligible for the scheme or will he be covered by exceptions as provided in section 9 of DTVSV Act, 2020

Answer

As we understand, the assessee fulfils all the criteria to be eligible under VSVA. Section 9 of VSVA is an exhaustive list to whom the Act shall not apply. As the case of the assesee does not fall under any of the criterion under section 9 of VSVA.  The assessee can avail the benefit of the scheme .  

 

Query

One of my relatives has assessment completed ex-parte. Unfortunately, none of his tax advisors have represented his case before CIT(A) and ITAT, eventhough appeals were filed before them in time.

HON’BLE ITAT has passed order ex-parte with a direction that the matter may be heard again if the assesses proves genuineness of not being able to represent facts and plead his case before ITAT.

He has filed MA before ITAT with affidavit from his tax consultant confessing negligence on his part for nor effectively handling all the tax related litigation before authorities. Such MA is pending to be disposed of by ITAT as on the cut off date.

Can he take benefit under this scheme in so far as disputed tax involved in the order which is subject matter of the MA,

Answer

If the ITAT has set aside the matter to CIT (A) to decide the matter on merit  the  appeal is pending as on the specified date.ie 31-1-2020 . If the appeal is set a side to the AO , it is desirable to file an Miscellaneous application before the Tribunal and pray for recalling of the order. The miscellaneous application can be filed with in six months  of the receipt of the order. In  Devendra G.Pasale v ACIT ( 2010) 333 ITR 263 (Guj) (HC) has held that even ex parte order passed on merits can be set aside as per Rule 24 of the ITAT Rules  also refer, Lalitnirman Business Development (P.) Ltd v ITO  (2018) 259 Taxman 23 (Bom) (HC)

 

Query

If my client has not opned the traces site for one year and ex party order is given by CIT-A and came to know after 31/1/20 , hence could not able to file appeal In ITAT. Wants to go in VsV.

Answer

It is desirable to  file an appeal before the Appellate Tribunal with condonation of delay . Request the Honourable vice president to fix the appeal for hearing only on condonation of delay. Once the delay is condoned it relates back  and the assessee  can avail the benefit of the VSVA

Query

One of My client has received an Order from AO U/s. 143(3) and the timelimit for filing appeal as on 31-01-2020 has not expired.But Appeal has not been filied till date.Will this case be eligible for the scheme.

Answer

There is no clarification for cases where deemed appeal is not filed. However, going by the language of VSVA strictly; The case is eligible for VSVA and there is no express language dictating otherwise. However , it is desirable to file an appeal now with application for condonation of delay. The assesses should request the CIT(A) to pass the order on condonation of delay . Once the delay is condoned appeal relates back , hence the assessee will be eligible to avail the benefit of VSVA .

Query

I have filed Form 1 of VSVS.
There is a option to revise the form 1 already filed. I want to cases when I may revised the Form 1.
Till the date DA has not filed Form 3.
Thanks.

Answer

Yes you nay revise the form before issue of certificate by Designated authority . Representation is sent to CBDT to clarify at what circumstances the assessee can  revise the form We are expecting clarification from CBDT on this particular issue .

Query

I have purchased a plot of worth rs.5500000 with sources from.husband and sons ,but due to some personal problems i could not represent/produce the proofs from my side on time ,but IT dept. taken bank statement s in which they found 15 lacs cash deposits erroneously with wrong notations and remaining are online transfers from my sons..but by having all statements… they computed tax 22,00,000 out Of Which Future Interst 5 Lacs and tax with special rate of interest. So i appealed cit,but not yet called. recently they sent a notice to pay min 20 percent so i paid..mean while vivad se viswas was notified. Can I Get Relief Of Special Rate Of Taxation And Futre Interst Amounts.do they review complete case and find correct tax in this scheme? Kindly suggest

Answer

From what we understand from your query, if your case holds merits its better to contest the matter on merits. Further, under the VSVA, if the payment is made before December 31, 2020, you will have to pay only the disputed tax amount; the interest would be waved. However, if the addition is for the AY 2017-18 and it is at the special rate as per section 115 BBE of the Income tax Act, 1961, there will be no relief to that effect. If you are able to substantiate the source of investments by filing additional evidence it may be worth contesting in appeal . It may be desirable to take specific grounds  on natural  justice and file an affidavit why could not attend before the A0 and pray  for admitting additional evidence .