TaxTMI 
TaxTMI 
2021 (11) TMI 1055
X X X X Extracts X X X X
X X X X Extracts X X X X
....fund a sum of Rs. 91,05,200/- as determined by the first Respondent vide Order DIN: ITBA/REC/M/154/2020-21/1031286244(1), dated 05.03.2021 under Section 154 of the Income Tax Act, 1961. 3. The case of the petitioner in W.P. No. 15762 of 2021 is that during the previous year 2010-11, the petitioner had received advance from some of its customers which was not offered to income. The assessment was completed and an assessment order dated 31.03.2016 was passed for the Assessment Year 2011-12 [previous year 2010-11] , whereby the petitioner was made liable to pay tax on the advance received from various customers. It is submitted same amount was added to the taxable income of the petitioner on protection basis for the Assessment Year 2014-15 by determining the income as Rs. 3,21,90,000/- after allowing an expenditure of Rs. 30,000/-. 4. The petitioner preferred an appeal before the CIT (Appeals) against the Assessment Order dated 31.03.2016 for the Assessment Year 2011-2012. The petitioner's appeal was allowed by CIT (Appeals), vide order dated 23.02.2018. Further appeal before the Tribunal by the Department was also dismissed, vide order dated 03.12.2018. In these circumstances....
X X X X Extracts X X X X
X X X X Extracts X X X X
....heme for the assessment year 2011-12 on 02.12.202. As per Circular No.7 of 2020 dated 04.03.2020 issued by Central Board of Direct Taxes, on settlement of dispute related to substantive addition under Vivad Se Vishwas, the Assessing Officer shall pass rectification order deleting the protective addition relating to the same issue in the case of the assessee. 10. Appearing on behalf of the petitioner, Ms. Pushya Sitaraman, learned Senior Counsel would submit that the respondents are bound to repay the amount which has been confirmed by the first respondent while passing the order under Section 154 of the Income Tax Act on 08.03.2021. The learned Senior Counsel has also drawn the attention to Circular No.7/2020, dated 04.03.2020 bearing reference F. No. IT(A)/1/2020-TPL, Government of India, Ministry of Finance, Department of Revenue, Central Board of Direct Taxes. In particular, reference was made to the Answer given to Question No.35, wherein the CMBT has answered as follows: Question No.35 : If there is substantive addition as well as protective addition in the case of same assessee for different assessment year, how will that be covered? Similarly if there is substantive add....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n'ble Division Bench of the Gujarat High Court in the case of Commissioner of Income Tax v. Hirenbhai K. Patel reported in 2014 SCC OnLine Guj 15765. The learned Senior Counsel submits that in the above case, the case that fell for consideration before the Special Bench of the Income Tax was pertaining to the assessee which was a beneficiary Trust of the main Trust called S.K. Patel Family Trust having share of income from Main Trust and also interest income from the Main Trust along with their independent incomes. The Assessee had taken stand that the income attributable to the beneficiary Trusts are to be assessed in the individual hand of the beneficiary Trusts whereas the Income Tax department took a view that the income of the Main Trust should be assessed in its own hand. There the dispute regarding the taxability of income in the hands of main Trust reached upto the jurisdictional High Court on reference application and while the reference was pending before the Hon'ble High Court of Gujarat, the Government announced KVSS scheme under which the main Trust settled the dispute regarding taxability of income in its hand by paying appropriate tax and securing the relevan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oach the Appellate Commissioner as that would be the correct method of resolving the dispute. 20. By way of rejoinder, the learned Senior Counsel for the petitioner submits that the decision of the Hon'ble Supreme Court in the above case cannot apply as the said case was rendered in the context of peculiar facts of the aforesaid case. It is submitted that the return was filed on 30.11.1995 by the appellant/assessee therein and on 12.01.1998, the assessee wanted to claim deduction by way of a letter before the Assessing Officer which was disallowed by the Assessing Officer on the ground that there was no provision for amending the return. 21. The learned Senior Counsel further submitted that in the said case the appeal filed by the assessee was allowed and on further appeal made by the department, the department appeal was allowed. It is further submitted that the decision was rendered in the context of Section 254 of the Income Tax Act and that the said decision does not in anyway relate to the power of the Assessing Officer to entertain the claim for revision, otherwise than by filing revised return. Therefore, the said decision is also of no consequence. 22. The learned....