| Query | Appeal before the Income tax Appellate Tribunal (‘ITAT’) was heard on 27th December 2019 and the order is pronounced on 2nd February, can the assessee approach under the scheme |
| Answer | 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. Accordingly, the assessee can avail the benefit. 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.
As per the CBDT Circular No. 7 of 2020 dated March 4, 2020 Q No 23, reads as under Q. No 23. If the due date of filing appeal is after 31-01 2020, the appeal has not been filed, will such case be eligible for Vivad se Vishaws? Ans. “Yes”. Accordingly, the querist can avail the benefit of the scheme. |
| Query | The assessee has filed a petition before the Settlement commission, which is pending for admission as on 31st January, 2020, can the assessee avail the benefit of the Scheme? |
| Answer | As per Section 2 (1) b) of the VSVA “appellate forum” means the Supreme Court or the High Court or the Income Tax Appellate Tribunal or the Commissioner (Appeals), Settlement Commission is not covered. As per Section 2(1) v) of the VSVA, a person who has filed an application for revision under section 264 of the Income-tax Act and such application is pending as on the specified date is included. The settlement commission is not included hence , the assessee cannot avail the benefit. AIFTP had made a representation to the CBDT to clarify the issue. Reading the VSVA, it is clear that the proceedings pending before Settlement Commission is not covered. |
| Query | Department has filed Writ against the order passed by the Settlement Commission, can an assessee file declaration under the Scheme.? If yes how to compute the tax is dispute? |
| Answer | As per definition of S.2(1)(a) , “appellant” means— (i) a person in whose case an appeal or a writ petition or special leave petition has been filed either by him or by the income-tax authority or by both, before an appellate forum and such appeal or petition is pending as on the specified date; Further,As per S 2 (1) (o) “tax arrear” means,— (i) the aggregate amount of disputed tax, interest chargeable or charged on such disputed tax, and penalty leviable or levied on such disputed tax; or (ii) disputed interest; or (iii) disputed penalty; or (iv) disputed fee, as determined under the provisions of the Income-tax Act. The declaration can be filed in respect of Writ petition is filed by the Department. There may be case where the writ is admitted or there may be case the writ may be pending for admission; the appellant can file the declaration. Further, CBDT vide Circular No. 7 of 2020 dated March 4, 2020 at Q. No 24, which reads as under: 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” The same principle will apply to Writ also As regards the computation of tax arrears is concerned, after passing the order under section 245D(1) of the Income tax Act, 1961 (‘Act’) allowing the Settlement application to be proceeded with, a copy of annexure to the said application together with a copy of each of the statements and other documents accompanying such annexure shall be forwarded to the Commissioner along with a copy of the said order with the direction that Commissioner shall furnish a further report with in ninety days of the receipt of the said annexure. Normally, the Commissioner quantifies the amount to be settled as per their working. Accordingly, the on the basis of quantification tax can be calculated. The writ being filed by the department only 50% tax in disputes is to be paid. (Refer CBDT Circular No. 7 of 2020 dated March 4, 2020, at Q. No. 28 & Ans.). On receipt of the certification the querist through their advocate on record can make an application to with draw the appeal of the revenue. On hearing other side, the Court will pass the order dismissing the appeal of the revenue. |
| Query | All appeals are covered? What about Writs? |
| Answer | Yes. All appeals are covered by the scheme. Even Writs are covered. |