Re: Appeal by ACIT to ITAT after declartion of vivad se viswas scheme

For the Assessment year 2016-17, Assessment has done and order passed by AO with 5 additions made on 30.12.2017.I preferred an appeal to CIT(A) on 02.02.2018. Appeal is partially allowed by CIT(A).out of 5 additions made by AO, 4 additions deleted by CIT(A). Against the rest addition I filed appeal at ITAT later. As appeal is pending at ITAT on 30.01.2020 I filed declaration under vivad se viswas scheme on 28.05.2020. The status showing in the portal is waiting for Form 3. Few days After submission of declaration by me I received letter for hearing from ITAT on 10/07/2020 because of the AO preferred an appeal against the grounds of deletion done by CIT(A).Date of filling appeal by AO is 06.06.2020.
Whether AO can do so even after I filed the vivad se viswas scheme declaration?
If it is yes what are the consequences.
Can I file revised declaration under vivad se viswas scheme again if in case any enhancement done by ITAT as a result of this appeal by AO?

This question is already answered earlier .  According to us ,  when an appeal is decided against the assessee . The department cannot file an  appeal . The Department can file an appeal against a ground held in favour by the CIT(A), if the tax in dispute is more than 50 lalkhs , as per the Circular of the Board  no 3 of 2018 dt 11-07  -2018 ( 2018) 405 ITR 29 (St)   , unless the case falls with exception clause of the Circular No 3 of 2018  dt 20 -08 -2018 (2018) 407 ITR 4 (St)  (Para 10)  The Tribunal has no power of enhancement please refer Mcorp (P) Ltd v CIT ( 2009) 309 ITR 434 (SC).  According to us the declaration is valid . The assessee may write to the  Appellate Tribunal to serve the grounds of appeal of the department . On reading the grounds  the assessee  may be able to decide whether the departmental appeal is valid or not. If the departmental appeal is in accordance with the law , the assessee  may think of contesting the appeal on merit or may also file a separate application under the scheme to settle the departmental appeal by paying the 50% of tax in dispute . Refer Circular F .No IT (A) 1/2020 -TPL No 9 /2020  dt 22 –4 -2020  www.itatonline .org answer to question No 28   . It may not be possible to file the revised form after the passing and servicing of the order by the Appellate Tribunal 

 

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