Re: CAN OPTING VSVS APPEAL FILING BEFORE ITAT IS COMPULSORY

Sir my client file appeal against order of A.O.and order from commissioner appeal dated 21.01.20 was recd.by post dated 15/2/20 and I have not file appeal before ITAT and opt VSVS Scheme on 17.06.20 by filing form I & II. Thereafter I assessee received form III from dapartment and Submitted form IV with tax challan on 08.12.20.But now department want to revised the order on the ground that as on 31.01.20 no appeal is pending.
Please give your valuable guidance whether action taken by department is correct or not?

As per the scheme the  Appeal has to be pending as on the specified date , i.e 31-1 -2020 . On the facts of the assessee though the order dt 21-1 -2020  it was communicated to the assessee as on 15 -2- 2020, hence it can be contended that the appeal was pending as on the specified date , i.e . 31 -1 -2020.  In Nareshbhai Bhagubhai & Ors v .UOI  ( 20190 15 SCC 1 ( Para 27 ) the Honourable Court held that unless the order is communicated it can be regarded anything more than being a provision in character , the Honourable Court referred Bacchhittar v .State of Punjab AIR 1963 SC 395  . Applying the  ratio laid down the Apex Court  it can be contended that the appeal was pending   as on the specified date  hence entitle for  availing the benefit of the scheme .

  

 

Please refer Circular No 7/ 2020  dt 4-03 2020  https://www.incometaxindia.gov.in/communications/circular/circular_no_7_2020.pdf    Q. no 36 . Which reads as under ; Q. 36 : In a case ITAT has passed order giving relief on two issaes and confirming three issues. Time to file appeal has not expired as on specified date. The taxpayer wishes to file declaration for the three issues which have gone against him. What about the other two issues as the taxpayer is not sure if the department will file appeal or not?

Ans : The Vivad se Vishwas allow declaration to be filed even when time to file appeal has not expired considering them to be a deemed appeal. Vivad se Vishwas also envisages option to assessee to file declaration for only his appeal or declaration for department appeal or declaration for both. Thus, in a given situation the appellant has a choice, he can only settle his deemed appeal on three issues, or he can settle department deemed appeal on two issues or he can settle both. If he decides to settle only his deemed appeal, then department would be free to file appeal on the two issues (where the assessee has got relief) as per  the extant procedure laid down and directions issued by the CBDT.

Accordingly the  assessee  can avail the benefit of the scheme .

If the Designated Authority  rejects the application the assessee may have to file writ before the High Court .

In case the assessee is not approaching the High Court  It may also desirable to file an appeal before the Tribunal  as soon as the application is rejected , with the application for condonation of delay and contest the appeal on merit

 

    

---