ACIT, CIRCLE-20(3), MUMBAI v. M/S. S.S.K ENGINEERING WORKS, MUMBAI

ITA 5175/MUM/2019 | 2009-2010
Pronouncement Date: 18-03-2021 | Result: Dismissed

Appeal Details

RSA Number 517519914 RSA 2019
Assessee PAN AAOCS2322Q
Bench Mumbai
Appeal Number ITA 5175/MUM/2019
Duration Of Justice 1 year(s) 7 month(s) 11 day(s)
Appellant ACIT, CIRCLE-20(3), MUMBAI
Respondent M/S. S.S.K ENGINEERING WORKS, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 18-03-2021
Appeal Filed By Department
Order Result Dismissed
Bench Allotted G
Tribunal Order Date 18-03-2021
Last Hearing Date 18-03-2021
First Hearing Date 18-03-2021
Assessment Year 2009-2010
Appeal Filed On 07-08-2019
Judgment Text
- IN THE INCOME TAX APPELLATE TRIBUNAL (VIRTUAL COURT) E BENCH MUMBAI BEFORE SHRI C.N. PRASAD HON'BLE JUDICIAL MEMBER AND SHRI M. BALAGANESH HON'BLE ACCOUNTANT MEMBER ITA NO S . 4724 TO 4743/MUM/2019 (A.YS: 2013 - 14 TO 2014 - 15 AND 2016 - 17 TO 2019 - 20) M/S. S . S . K ENGINEERING WORKS (INDIA) PVT. LTD. 47 MAGAZINE STREET DARUKHANA MAZAGAON MUMBAI - 400010 PAN: AAOCS2322Q V. INCOME TAX OFFICER (TDS) - 2(2)(4) K.G. MITTAL AAYURVEDIC PRACHER SANSTHA BLDG. CHARNI ROAD MUMBAI 400002 (APPELLANT) (RESPONDENT) ITA NO S . 5175 & 5176/MUM/2019 (A.Y S : 2009 - 10 & 201 0 - 11) ACIT CIRCLE 20(3) ROOM NO. 615 6 TH FLOOR PIRAMAL CHAMBERS PAREL MUMBAI 400 018 V. M/S. S. S . K ENGINEERING WORKS 47 MAGAZINE STREET DARUKHANA MAZAGAON MUMBAI - 400010 PAN: AAAFS5181L (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DINESH SHAH DEPARTMENT BY : SHRI VIJAYKUMAR MENON DATE OF HEARING : 18 .03.2021 DATE OF PRONOUNCEMENT : 18 .03 .2021 2 ITA NOS. 4724 TO 4743/MUM/2019 M/S. S.S.K ENGINEERING WORKS (INDIA) PVT. LTD. ITA NOS. 5175 & 5176/MUM/2019 M/S. S.S.K ENGINEERING WORKS O R D E R PER BENCH 1. TH ESE APPEAL S ARE FILED BY THE ASSESSEE AND REVENUE AGAINST DIFFERENT ORDER S OF LEARNED COMMISS IONER OF INCOME TAX (APPEALS) MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] FOR THE A.YS. 2013 - 14 TO 2014 - 15 AND A.Y. 2016 - 17 TO 2019 - 20. 2. AT THE TIME OF HEARING THE APPEALS VIRTUALLY LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE OPTED FOR VIVAD SE VISHWAS SCHEME AND FILED DECLARATION AND UNDERTAKING IN FORM - 1 TO SETTLE THE LITIGATION AND FORM 3 IS RECEIVED FROM THE REVENUE. FURTHER LD. C OUNSEL FOR THE ASSESSEE THROUGH E - MAIL FILED A LETTER DATED 17 TH MARCH 2021 PRAYED FOR WITHDRAWAL OF APPEALS. CONTENTS OF THE ABOVE LETTER ARE AS UNDER: - RE - SSK ENGINEERING WORKS INDIA P LTD RE - 4724 - 4743/MUM/2019 RE - AY 2013 - 14 TO AY 2014 - 15 AND AY 2016 - 17 TO AY 2019 - 20 RE - DATE OF HEARING: 18 - 03 - 2021 RESPECTED SIR/ MADAM IN CONNECTION WITH THE ABOVEMENTIONED APPEALS SCHEDULED FOR HEARING ON 18 - 03 - 2021 WE ON BEHALF OF THE ASSESSEE STATE AND SUBMIT AS UNDER: - ASSESSEE H AS FILED APPEAL AGAINST THE ORDERS PASSED BY THE LEARNED CIT(A) ON 15 - 07 - 2019. THE ASSESSEE HAS OPTED FOR DIRECT TAX VIVAD SE VISHWAS SCHEME FOR AY 2013 - 14 TO AY 2014 - 15 AND AY 2016 - 17 TO AY 2019 - 20. FORM 3 ISSUED FOR ALL THE 20 MATTERS ARE ENCLOSED HEREWI TH. HENCE WE REQUEST YOUR 3 ITA NOS. 4724 TO 4743/MUM/2019 M/S. S.S.K ENGINEERING WORKS (INDIA) PVT. LTD. ITA NOS. 5175 & 5176/MUM/2019 M/S. S.S.K ENGINEERING WORKS HONOURS TO ALLOW US WITHDRAWAL OF APPEAL SO THAT MATTER CAN BE SETTLED UNDER DIRECT TAX VIVAD SE VISHWAS SCHEME 2020. FORM 3 FOR AY 2013 - 14 TO AY 2014 - 15 AND AY 2016 - 17 TO AY 2019 - 20 WRITTEN SUBMISSION AND LETTER OF AUTHORITY ARE ENCLOSED FOR YOUR REFERENCE. CONTENTS OF THE LETTER DATED 18 TH MARCH 2021 IN ITA NO S. 5175 AND 5176/MUM/2019 ARE AS UNDER: - RE - SSK ENGINEERING WORKS RE - ITA.NO. 5175/M/2019 AND 5176/M/2019 (DEPARTMENT'S APPEAL) RE - AY 2009 - 10 AND AY 2010 - 11 RE - DATE OF HEARING: 18 - 03 - 2021 RE - REQUEST TO ALLOW WITHDRAWAL OF DEPARTMENT'S APPEAL BECAUSE ASSESSEE IS OPTING FOR VIVAD SE VISHWAS SCHEME RESPECTED SIR/ MA D AM IN CONNECTION WITH THE ABOVEMENTIONED APPEALS SCHEDULED FOR HEARING ON 18 - 03 - 2021 WE ON BEHALF OF THE ASSESSEE FIRM STATE AND SUBMIT AS UNDER - THE INCOME TAX DEPARTMENT HAS FILED AN APPEAL AGAINST THE ORDERS PASSED BY THE LEARNED CIT(A) FOR AY 2009 - 10 AND AY 2010 - 11 ON 07 - 08 - 2019. THE ASSESSEE HAS SUBMITTED FORM 1 & 2 (ENCLOSED) FOR AY 2009 - 10 AND AY 2010 - 11 UNDER THE VIVAD SE VISHWAS SCHEME ON 26.02.2021 IN ORDER TO SETTLE THESE T WO DEPARTMENTAL APPEALS I.E. ITA 5175/M/2019 AND 5176/M/2019. HENCE WE REQUEST YOUR HONOURS TO DIRECT THE WITHDRAWAL OF THESE TWO APPEALS I.E. ITA 5175/M/2019 AND 5176/M/ 2019 SO THAT MATTER CAN BE SETTLED UNDER VIVAD SE VISHWAS SCHEME. FORM 3 IS AWAITED FROM THE CIT'S OFFICE AND SHALL BE SUBMITTED ONCE THE ASSESSEE FIRM RECEIVES IT. PFA FORM 1 AND 2 FOR AY 2009 - 10 AY 2010 - 11 WRITTEN SUBMISSION AND LETTER OF AUTHORITY 3. ON A PERUSAL OF THE ABOVE LETTER AND THE ENCLOSED COPIES OF FORM - 3 IN ITA NO S. 4724 TO 4743 & 5175 /MUM/2019 IT IS NOTICED THAT ASSESSEE HAS ALREADY FILED DECLARATION AND UNDERTAKING IN FORM - 1 UNDER VIVAD SE 4 ITA NOS. 4724 TO 4743/MUM/2019 M/S. S.S.K ENGINEERING WORKS (INDIA) PVT. LTD. ITA NOS. 5175 & 5176/MUM/2019 M/S. S.S.K ENGINEERING WORKS VISHWAS SCHEME AND RECEIVED FORM - 3 FROM THE REVENUE ACCEPTING THE SAID DECLARATION. ASSESSEE REQUESTED FOR WITHDRAWAL OF THE APPEAL S . ACCEPTING THE REQUEST OF THE ASSESSEE FOR WITHDRAWAL OF APPEAL S TH ESE APPEAL S ARE DISMISSED AS WITHDRAWN. 4. COMING TO APPEAL IN ITA.NO. 5176/MUM/2019 ON PERUSAL OF THE ABOVE LETTER FILED BY THE LD. COUNSEL FOR THE ASSESSEE IT IS OBSERVED THAT ASSESSEE FILED DECLARATION AND UNDERTAKING IN FORM - 1 AND FORM - 2 TO SETTLE THE LITIGATION AND FORM 3 IS AWAITED FROM THE REVENUE . IN VIEW OF THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE SINCE ASSESSEE HAS OPTED TO SETTLE LITIGATION UNDER VIVAD SE VISHWAS SCHEME NO PURPOSE WOULD SERVE KEEPING THE APPEAL PENDING. 5. THE HON'BLE MADRAS HIGH COURT IN THE CASE OF M/S. NANNUSAMY MOHA N (HUF) V. ACIT IN T.C.A. NO. 372 OF 2020 DATED 16.10.2020 ON AN APPEAL BY THE ASSESSEE U/S. 260A OF THE ACT HELD AS UNDER: - THIS APPEAL HAS BEEN FILED BY THE ASSESSEE UNDER SECTION 260 A OF THE INCO ME TAX ACT 1961 ('THE ACT' FOR BREVITY) CHALLENGING THE ORDER DATED 03.12.2018 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL CHENNAI 'A' BENCH ('THE TRIBUNAL' FOR BREVITY) IN I.T.A.NO.2576/CHNY/2017 FOR THE ASSESSMENT YEAR 2011 - 12. THE APPEAL IS ADMITTED ON THE FOLLOWING SUBSTANTIAL QUESTIONS OF LAW: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE INCOME TAX APPELLATE TRIBUNAL WAS PERVERSE IN NOT CONSIDERING ALL THE GROUNDS RAISED IN 5 ITA NOS. 4724 TO 4743/MUM/2019 M/S. S.S.K ENGINEERING WORKS (INDIA) PVT. LTD. ITA NOS. 5175 & 5176/MUM/2019 M/S. S.S.K ENGINEERING WORKS CROSS OBJECTION VIZ. (1) CLAIM OF EXEMPTION IN RESPECT OF S ALE OF AGRICULTURAL LAND (2) CLAIM OF DEDUCTION BY WAY OF COST INFLATION INDEX AND COST OF PLOT OF LAND PURCHASED IN COMPUTING DEDUCTION U/S.54F OF INCOME TAX ACT? 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE INCOME TAX APPELLATE TRIBUNAL WAS RIGHT IN LAW IN UPHOLDING THE DISALLOWANCE OF COST OF IMPROVEMENT IN PROVIDING MODERN KITCHEN IN THE FLATS PURCHASED? 2. WE HAVE HEARD MR.M.P.SENTHIL KUMAR LEARNED COUNSEL APPEARING FOR THE APPELLANT/ASSESSEE AND MR.T.R.SENTHIL KUMAR LEARNED SENIOR STA NDING COUNSEL AND M/S.K.G.USHA RANI LEARNED COUNSEL FOR THE RESPONDENT/REVENUE. 3. THE LEARNED COUNSEL FOR THE APPELLANT / ASSESSEE ON INSTRUCTIONS SUBMITTED THAT THE APPELLANT / ASSESSEE INTENDS TO AVAIL THE BENEFIT OF VIVAD SE VISHWAS SCHEME ('VVS SCHEME' FOR BREVITY) AND IN THIS REGARD THE ASSESSEE IS TAKING STEPS TO FILE THE APPLI CATION / DECLARATION IN FORM NO.I. 4. IT MAY NOT BE NECESSARY FOR THIS COURT TO DECIDE THE SUBSTANTIAL QUESTIONS OF LAW FRAMED FOR CONSIDERATION ON ACCOUNT OF CERTAIN SUBSEQUENT DEVELOPMENTS. THE GOVERNMENT OF INDIA ENACTED THE DIRECT TAX VIVAD SE VISHWAS ACT 2020 (ACT 3 OF 2020) TO PROVIDE FOR RESOLUTION OF DISPUTED TAX AND FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO. THE ACT OF THE PARLIAMENT RECEIVED THE ASSENT OF THE PRESIDENT ON 17TH MARCH 2020 AND PUBLISHED IN THE GAZETTE OF INDIA ON 17TH MARCH 2020. 5. IN TERMS OF THE SAID ACT THE ASSESSEE HAS BEEN GIVEN AN OPTION TO PUT AN END TO THE TAX DISPUTES WHICH MAY BE PENDING AT DIFFERENT LEVELS EITHER BEFORE THE FIRST APPELLATE AUTHORITY OR BE FORE THE TRIBUNAL OR BEFORE THE HIGH COURT OR BEFORE THE HON'BLE SUPREME COURT OF INDIA. UNDER SECTION 2(J) DISPUTED TAX HAS BEEN DEFINED. IN TERMS OF SECTION 3 WHERE A DECLARANT MEANS A PERSON WHO FILES A DECLARATION UNDER SECTION 4 ON OR BEFORE THE LAST DATE FILES A DECLARATION TO THE DESIGNATED AUTHORITY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4 IN RESPECT OF TAX ARREARS THEN NOTWITHSTANDING ANYTHING CONTAINED IN THE INCOME TAX ACT OR ANY OTHER LAW FOR THE TIME BEING IN FORCE THE AM OUNT PAYABLE BY THE DECLARANT SHALL BE DETERMINED IN TERMS OF SECTION 3 (A - C) THEREUNDER. 6 ITA NOS. 4724 TO 4743/MUM/2019 M/S. S.S.K ENGINEERING WORKS (INDIA) PVT. LTD. ITA NOS. 5175 & 5176/MUM/2019 M/S. S.S.K ENGINEERING WORKS 6. THE FIRST PROVISO TO SECTION 3 STATES THAT IN CASE WHERE AN APPEAL OR WRIT PETITION OR SPECIAL LEAVE PETITION IS FILED BY THE INCOME TAX AUTHORITY ON ANY ISSUE BEFORE THE APPELLATE FORUM THE AMOUNT PAYABLE SHALL BE ONE - HALF OF THE AMOUNT IN THE TABLE STIPULATED IN SECTION 3 CALCULATED ON SUCH ISSUE IN SUCH A MANNER AS MAY BE PRESCRIBED. THE SECOND PROVISO DEALS WITH THE CASES WHERE THE MATTER IS BEFORE THE COMMISSIONER (APPEALS) OR BEFORE THE DISPUTE RESOLUTION PANEL. THE THIRD PROVISO DEALS WITH CASES WHER E THE ISSUE IS PENDING BEFORE THE INCOME TAX APPELLATE TRIBUNAL. THE FILING OF THE DECLARATION IS AS PER SECTION 4 OF THE ACT AND THE PARTICULARS TO BE FURNISHED ARE ALSO MENTIONED IN THE SUB SECTIONS OF SECTION 4 . SECTION 5 OF THE ACT DEALS WITH THE TIME AND MANNER OF THE PAYMENT AND SECTION 6 DEALS WITH IMMUNITY FROM INITIATION OF PROCEEDINGS IN RESPECT OF OFFENCE AND IMPOSITION OF PENALTY IN CERTAIN CASES. SECTION 9 OF THE ACT DEALS WITH CASES WHERE THE ACT 3 OF 2020 WILL NOT BE APPLICABLE. 7. AS OBSERVED THE ASSESSEE IS GIVEN LIBERTY TO RESTORE THIS APPEAL IN THE EVENT THE ULTIMATE DECISION TO BE TAKEN ON THE DECLARATION TO BE FILED BY THE ASSESSEE UNDER SECTION 4 OF THE SAID ACT IS NOT IN FAVOUR OF THE ASSESSEE. IF SUCH A PRAYER IS MADE THE REGISTRY SHALL ENTERTAIN THE PRAYER WITHOUT INSISTING UPON ANY APPLICATION TO BE FILED FOR CONDONATION OF DELAY IN RESTORATION OF THE APPEAL AND ON SUCH REQUEST MADE BY THE ASSESSEE BY FILING A MISCELLA NEOUS PETITION FOR RESTORATION THE REGISTRY SHALL PLACE SUCH PETITION BEFORE THE DIVISION BENCH FOR ORDERS. 8. IN THE LIGHT OF THE ABOVE WE DIRECT THE APPELLANT / ASSESSEE TO FILE THE FORM NO.I ON OR BEFORE 20.11.2020 AND THE COMPETENT AUTHORITY SHALL PR OCESS THE APPLICATION / DECLARATION IN ACCORDANCE WITH THE ACT AND PASS APPROPRIATE ORDERS AS EXPEDITIOUSLY AS POSSIBLE PREFERABLY WITHIN A PERIOD OF SIX (6) WEEKS FROM THE DATE ON WHICH THE DECLARATION IS FILED IN THE PROPER FORM. 6. FOLLOWING THE ABOVE DEC ISION OF THE HON'BLE MADRAS HIGH COURT THE APPEAL IS DISPOSED OFF ACCORDINGLY WITH LIBERTY TO THE REVENUE TO FILE A MISCELLANEOUS APPLICATION IN THE EVENT OF EITHER THE ASSESSEE NOT OPTING FOR VIVAAD SE VISHWAS SCHEME AS CONTEMPLATED BY IT BEFORE THE DU E DATE OF THE SCHEME IN OPERATION OR IN THE EVENT OF THE DEPARTMENT NOT ACCEPTING 7 ITA NOS. 4724 TO 4743/MUM/2019 M/S. S.S.K ENGINEERING WORKS (INDIA) PVT. LTD. ITA NOS. 5175 & 5176/MUM/2019 M/S. S.S.K ENGINEERING WORKS THE APPLICATION MADE BY THE ASSESSEE UNDER THE SAID SCHEME THE APPEAL OF THE REVENUE SHALL BE RECALLED BY THE TRIBUNAL AND RESTORED FOR ADJUDICATION ON MERITS. IT IS FURTHE R MADE CLEAR THAT IF THE REVENUE SEEKS TO RESTORE THE APPEAL IN THE EVENT OF ASSESSEES DECLARATION MADE UNDER VIVAAD SE VISHWAS SCHEME IS NOT ACCEPTED BY THE REVENUE THE REGISTRY SHALL NOT INSIST FOR FILING OF APPLICATION FOR CONDONATION OF DELAY IF THE MISCELLANEOUS APPLICATION FOR RECALLING THE ORDER IS FILED BEYOND TIME ON ACCOUNT OF DELAYED COMMUNICATION OF OUTCOM E UNDER VIVAAD SE VISHWAS SCHEME IN VIEW OF THE DECISION OF THE HON'BLE MADRAS HIGH COURT IN THE CASE OF M/S. NANNUSAMY MOHAN (HUF) V. ACIT IN T.C.A. NO. 372 OF 2020 DATED 16.10.2020. WITH THESE OBSERVATIONS THE APPEAL IS DISMISSED AS WITHDRAWN. 7. IN THE RE SULT APPEAL S OF THE ASSESSEE AND REVENUE ARE DISMISSED AS WITHDRAWN. ORDER PRONOUNCED IN THE VIRTUAL COURT ON 18 .03.2021 . SD/ - SD/ - ( M. BALAGANESH ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 18 / 0 3 / 2021 GIRIDHAR SR.PS 8 ITA NOS. 4724 TO 4743/MUM/2019 M/S. S.S.K ENGINEERING WORKS (INDIA) PVT. LTD. ITA NOS. 5175 & 5176/MUM/2019 M/S. S.S.K ENGINEERING WORKS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) MUMBAI. 4. CIT 5. DR ITAT MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT MUM