A penalty u\/s 271D has been imoposed and order served upon the assessee on 25.01.2020. The time to file appeal against such order as on specified date is not expired.<\/p>\n
As per section 2 \u2018disputed tax\u2019 and \u2018disputed penalty\u2019 have been defined differently. While disputed tax includes cases where the order is served upon the assessee before the specified date i.e. 31.01.2020 and the time to file appeal against such order is not expired but it is not so in the case of disputed penalty.<\/p>\n
Circular issued by CBDT wherein some FAQs are there and Question 20 relates to penalty which states that where there is an appellate order passed by the CIT (A) and the time to file appeal before ITAT is not expired such case is covered.<\/p>\n
Relevant definitions and FAQ are reproduced herein below for ready reference.<\/p>\n
Section 2(i) \u201cdisputed penalty\u201d means the penalty determined in any case under the
\nprovisions of the Income-tax Act, 1961, where\u2014
\n(i) such penalty is not levied or leviable in respect of disputed income or
\ndisputed tax, as the case may be;
\n(ii) an appeal has been filed by the appellant in respect of such penalty;
\n( j) \u201cdisputed tax\u201d, in relation to an assessment year or financial year, as the case
\nmay be, means the income-tax, including surcharge and cess (hereafter in this clause
\nreferred to as the amount of tax) payable by the appellant under the provisions of the
\nIncome-tax Act, 1961, as computed hereunder:\u2014
\n(A) in a case where any appeal, writ petition or special leave petition is
\npending before the appellate forum as on the specified date, the amount of tax
\nthat is payable by the appellant if such appeal or writ petition or special leave
\npetition was to be decided against him;
\n(B) in a case where an order in an appeal or in writ petition has been passed
\nby the appellate forum on or before the specified date, and the time for filing
\nappeal or special leave petition against such order has not expired as on that
\ndate, the amount of tax payable by the appellant after giving effect to the order
\n(C) in a case where the order has been passed by the Assessing Officer on
\nor before the specified date, and the time for filing appeal against such order has
\nnot expired as on that date, the amount of tax payable by the appellant in
\naccordance with such order;
\n(D) in a case where objection filed by the appellant is pending before
\nthe Dispute Resolution Panel under section 144C of the Income-tax Act as
\non the specified date, the amount of tax payable by the appellant if the
\nDispute Resolution Panel was to confirm the variation proposed in the
\ndraft order;
\n(E) in a case where Dispute Resolution Panel has issued any direction
\nunder sub-section (5) of section 144C of the Income-tax Act and the Assessing
\nOfficer has not passed the order under sub-section (13) of that section on or
\nbefore the specified date, the amount of tax payable by the appellant as per the
\nassessment order to be passed by the Assessing Officer under sub-section (13)
\nthereof;
\n(F) in a case where an application for revision under section 264 of the
\nIncome-tax Act is pending as on the specified date, the amount of tax payable by
\nthe appellant if such application for revision was not to be accepted:
\nProvided that in a case where Commissioner (Appeals) has issued notice
\nof enhancement under section 251 of the Income-tax Act on or before the specified
\ndate, the disputed tax shall be increased by the amount of tax pertaining to
\nissues for which notice of enhancement has been issued:
\nProvided further that in a case where the dispute in relation to an
\nassessment year relates to reduction of tax credit under section 115JAA or
\nsection 115D of the Income-tax Act or any loss or depreciation computed
\nthereunder, the appellant shall have an option either to include the amount of
\ntax related to such tax credit or loss or depreciation in the amount of disputed
\ntax, or to carry forward the reduced tax credit or loss or depreciation, in such
\nmanner as may be prescribed.<\/p>\n
20. In a case there is no disputed tax. However, there is appeal for
\ndisputed penalty which has been disposed of by CIT (Appeals) on 5th
\nJanuary 2020. Time to file appeal in ITAT against the order of
\nCommissioner(Appeals) is still available but the appeal has not yet
\nbeen filed. Will such case be eligible to avail the benefit?
\nYes, the appellant in this case would also be eligible to avail the benefit
\nof Vivad se Vishwas. In this case, the terms of availing Vivad se
\nVishwas in case of disputed penalty\/interest\/fee are similar to terms in
\ncase of disputed tax. Thus, if the time to file appeal has not expired as
\non specified date, the appellant is eligible to avail benefit of Vivad se
\nVishwas. In this case the appellant should indicate in the declaration
\nform that time limit to file appeal in ITAT has not expired.<\/p>\n
Please guide as to whether such case of penalty u\/s 271D where no appeal is pending as on 31.01.2020 would qualify for scheme. Thanks<\/p>\n","protected":false},"excerpt":{"rendered":"
A penalty u\/s 271D has been imoposed and order served upon the assessee on 25.01.2020. The time to file appeal against such order as on specified date is not expired. As per section 2 \u2018disputed tax\u2019 and \u2018disputed penalty\u2019 have been defined differently. While disputed tax includes cases where the order is served upon the assessee before the specified date i.e. 31.01.2020 and the time to file appeal against such order is not expired but it is not so in the case of disputed penalty. Circular issued by CBDT wherein some FAQs are there and Question 20 relates to penalty which states that where there is an appellate order passed by the CIT (A) and the time to file appeal before ITAT is not expired such case is covered. Relevant definitions and FAQ are reproduced herein below for ready reference. Section 2(i) \u201cdisputed penalty\u201d means the penalty determined in any case under the provisions of the Income-tax Act, 1961, where\u2014 (i) such penalty is not levied or leviable in respect of disputed income or disputed tax, as the case may be; (ii) an appeal has been filed by the appellant in respect of such penalty; ( j) \u201cdisputed tax\u201d, in relation to an assessment year or financial year, as the case may be, means the income-tax, including surcharge and cess (hereafter in this clause referred to as the amount of tax) payable by the appellant under the provisions of the Income-tax Act, 1961, as computed hereunder:\u2014 (A) in a case where any appeal, writ petition or special leave petition is pending before the appellate forum as on the specified date, the amount of tax that is payable by the appellant if such appeal or writ petition or special leave petition was to be decided against him; (B) in a case where an order in an appeal or in writ petition has been passed by the appellate forum on or before the specified date, and the time for filing appeal or special leave petition against such order has not expired as on that date, the amount of tax payable by the appellant after giving effect to the order (C) in a case where the order has been passed by the Assessing Officer on or before the specified date, and the time for filing appeal against such order has not expired as on that date, the amount of tax payable by the appellant in accordance with such order; (D) in a case where objection filed by the appellant is pending before the Dispute Resolution Panel under section 144C of the Income-tax Act as on the specified date, the amount of tax payable by the appellant if the Dispute Resolution Panel was to confirm the variation proposed in the draft order; (E) in a case where Dispute Resolution Panel has issued any direction under sub-section (5) of section 144C of the Income-tax Act and the Assessing Officer has not passed the order under sub-section (13) of that section on or before the specified date, the amount of tax payable by the appellant as per the assessment order to be passed by the Assessing Officer under sub-section (13) thereof; (F) in a case where an application for revision under section 264 of the Income-tax Act is pending as on the specified date, the amount of tax payable by the appellant if such application for revision was not to be accepted: Provided that in a case where Commissioner (Appeals) has issued notice of enhancement under section 251 of the Income-tax Act on or before the specified date, the disputed tax shall be increased by the amount of tax pertaining to issues for which notice of enhancement has been issued: Provided further that in a case where the dispute in relation to an assessment year relates to reduction of tax credit under section 115JAA or section 115D of the Income-tax Act or any loss or depreciation computed thereunder, the appellant shall have an option either to include the amount of tax related to such tax credit or loss or depreciation in the amount of disputed tax, or to carry forward the reduced tax credit or loss or depreciation, in such manner as may be prescribed. 20. In a case there is no disputed tax. However, there is appeal for disputed penalty which has been disposed of by CIT (Appeals) on 5th January 2020. Time to file appeal in ITAT against the order of Commissioner(Appeals) is still available but the appeal has not yet been filed. Will such case be eligible to avail the benefit? Yes, the appellant in this case would also be eligible to avail the benefit of Vivad se Vishwas. In this case, the terms of availing Vivad se Vishwas in case of disputed penalty\/interest\/fee are similar to terms in case of disputed tax. …<\/p>\n