TaxTMI 
TaxTMI 
2021 (7) TMI 171
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....oner's case is that it is a registered charitable trust. It had filed return of income for financial year 2009-10 - assessment year 2010-11, belatedly disclosing income to be 'Nil'. Subsequently, an intimation/computation sheet purporting to be under section 143(1) of the Income Tax Act, 1961 (IT Act) had been received at its end on 22nd December, 2012, determining income of Rs. 69,36,357/- and total tax liability to the tune of Rs. 19,84,908/- with interest thereon totalling to Rs. 31,83,240/-. It has been referred to by the petitioner that while preparing the return of income, audit report in Form No.10B was also prepared but the same remained to be filed along with the return of income. According to petitioner, there have been no reasons coming forth as to why the exemption under section 11 of the Act was disallowed or the adjustments could not have been made in the intimation under section 143(1)(a) of the IT Act. 4. Against aforesaid intimation, the petitioner preferred an appeal with the Commissioner of Income Tax (Appeals)-1, Mumbai ( CIT-A ) in November, 2018. 5. The appeal was dismissed on 31st January, 2020 on the ground of filing of the return belatedly. 6. Mr. ....
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....me hence, the application is rejected." 10. Mr. Gandhi vehemently submits that rejection of declaration for the reason adjustment has been made U/s. 143(a)(ii) is absolutely digressed from the intention and the purpose underlying bringing in enactment DTVSV Act and its object. Learned counsel particularly emphasizes that scheme of the DTVSV Act does not make any distinction in adjustments under the clauses or sub clauses of section 143 of the IT Act. There is no such reference in the enactment. However, such a distinction is sought to be carved out under the circular No. 21 of 2020 dated 04.12.2020 issued with an answer given to a question which goes beyond the provisions of the DTVSV Act. He submits that, answer to question no.71 does not have any rationale much less any plausible basis. The answer to question No.71 under the clarification, having regard to the provisions of the DTVSV Act, as a matter of fact, intercepts its underlying purpose and object and purports to bring in classification in appeals which is not intended under the enactment. He submits that the Petitioner's case squarely falls within the four corners of the DTVSV scheme and the Petitioner is eligible to ha....
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....spute Resolution Panel under section 144C of the Income-tax Act, 1961 and the Dispute Resolution Panel has not issued any direction on or before the specified date; (iv) a person in whose case the Dispute Resolution Panel has issued direction under sub-section (5) of section 144C of the Income-tax Act and the Assessing Officer has not passed any order under sub-section (13) of that section on or before the specified date; (v) 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;" (ii) It is also pertinent to refer to section 2(1)(j) defining the term "disputed tax", reading, thus : - "(j) "disputed tax", 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 as to the amount of tax) payable by the appellant under the provisions of the Income-tax Act, 1961, as computed hereunder :- (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 p....
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.... outside India or undisclosed asset located outside India: (iv) relating to an assessment or reassessment made on the basis of information received under an agreement referred to in section 90 or section 90A of the Income -tax Act, if it relates to any tax arrear; (b) ...... (c) ...... (d) ....... (e) ......." 14. There is no dispute on factual aspects and the reasons for rejection of Petitioner's Form No. 1 are with reference to answer to question No.71. Question No.71 and answer thereto, under CBDT circular bearing no.21/2020 dated 04/12/2020 read, thus : "Q.71 Vivad se Vishwas forms do not contain a specific option to settle appeal filed against intimation u/s. 143(1) of the Act. Accordingly, please clarify how to settle such appeal, which is pending as on 31st Jan.2020 (or time to file appeal has not expired on 31st Jan. 2020). Answer : Appeal filed against intimation u/s. 143(1) of the Act is eligible under Vivad se Vishwas if adjustment has been made under sub-clauses (iii) to (vi) of clause (a) of section 143(1) of the Act." 15. For ready reference, the provisions of Section 143 (1) (a) (i) to (vi) of the I....
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....so does require adherence to the principles of natural justice. The sub-clauses refer to (i) arithmetical error in the return, (ii) an incorrect claim apparent from return, (iii) disallowance of loss claimed beyond the due date, (iv) disallowance of expenditure or increase in income not taken into account in the computation, (v) disallowance of deduction(s) claimed if return is furnished beyond the due date, and (vi) addition of income appearing in Form 26AS or Form 16A or Form 16 which has not been included in the computation. 16. During the course of hearing, learned Counsel for petitioner has referred to and relied on a decision of this court in the case of Macrotech Developers Ltd. Vs. Principal Commisioner of Income Tax, reported in [2021] 126 taxmann.com 1 (Bombay), wherein it has been observed to the effect that clarifications / answers given by CBDT in response to certain questions not aligning with the legislative intent and doing violence to plain language of the statute and cannot be accepted. He has further relied on the Supreme Court judgment in the case of Keshavji Ravji & Co. Etc. Etc. Vs. Commissioner of Income Tax, reported in 1990 (82) CTR 0123 wherein it has b....
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....fying the adjustments in (iii) to (vi) of Clause(a) of Section 143(1) to be eligible under the DTVSV Scheme and excluding the adjustments referred to in (i) and (ii) under the circular No. 21 of 2020 without substantiating the same with any rationale or plausible basis or material therefor, would be arbitrary, unreasonable and discriminatory. The same would be in breach of Article 14 of Constitution of India and be liable to be set aside as such. Such a classification sought to be made would not be fitting into the requirements of intelligible differentia having nexus to the object to be achieved. Despite a query from the Court as to the purpose of this classification, there was no answer forthcoming from the Revenue. There does not appear to be any object to be achieved by such an unreasonable and arbitrary classification leading to discrimination among tax payers whose cases are falling in Clauses (i) or (ii) on one hand and those whose cases fall under Clauses (iii) to (vi) of Section 143(1)(a) of the IT Act. 21. It is queer on which basis circular purports to exclude appeals arising from the orders passed under section 143(1)(a)(i) or (ii). Neither there is reference to any ....