2022 (7) TMI 1368 - AT - Income Tax

Vivad Se Viswas Scheme - Assessee seeks restoration of appeals to file on the ground that though the assessee wanted to settle the issues under Vivad Se Viswas Scheme, due to financial constraints, the assessee could not take them to their logical conclusion and, therefore, the process under Vivad Se Viswas Scheme failed - HELD THAT - In so far as the assessee not paying the amount requisite under the Vivad Se Viswas Scheme is concerned, absolutely there is no dispute. There is nothing on record to show that the assessee did not have any financial constraints for not getting the matter settled under the Vivad Se Viswas Scheme. Even otherwise also, the record speaks that the assessee pleaded not to dismiss the appeal as withdrawn, in view of the fact that the settlement in tune with Form No.3 was not finalised by the department as on such date. Leave was granted to the assessee to file a petition to restore the appeals to file, if the settlement benefit under the Vivad Se Viswas Scheme was not given to the assessee. Matter is not decided on merits and no reference has been made to any of the contention of the parties. No adjudication took place in this matter. Only on the assumption that the appeals would be withdrawn on the proceedings under Vivad Se Viswas Scheme reaching their logical conclusion, the matter was dealt with in a summary manner, granting leave to the assessee to approach the Tribunal for revival of proceeding, if the proceedings under Vivad Se Viswas Scheme did not attain finality. Assessee never withdrew the appeals nor has any intention to withdraw the same. In these circumstances, we are of the considered opinion that the act of court shall not prejudice to case of any party. Actus Curiae Neminem Gravabit. With this view of the matter, while allowing these MAs, and restore the appeals to file. All these MAs are allowed restoring the appeals to file. Registry is directed to fix the appeals for hearing on 22-08-2022.

Summary

Issues: Restoration of appeals under Vivad Se Viswas Scheme due to financial constraints

Analysis:
The assessee sought restoration of appeals under the Vivad Se Viswas Scheme due to financial constraints preventing settlement. The order highlighted the plea made by the assessee to not dismiss the appeals as withdrawn, as the settlement was not finalized in accordance with Form No.3. The Tribunal granted leave for restoration if the Vivad Se Viswas Scheme did not resolve the dispute.

Analysis:
Regarding the non-payment under the Vivad Se Viswas Scheme, it was undisputed that the assessee did not fulfill the requisite amount. The record indicated the assessee's plea to not dismiss the appeal as withdrawn due to the unsettled Form No.3. The Tribunal allowed the assessee to seek restoration if the settlement benefit was not provided.

Analysis:
The judgment clarified that the matter was not decided on merits, with no reference to the parties' contentions. The decision was based on the assumption that the appeals would be withdrawn upon the Vivad Se Viswas Scheme's conclusion. As the assessee did not withdraw the appeals and intended to pursue them, the court's action was deemed not to prejudice any party. The Latin maxim "Actus Curiae Neminem Gravabit" was invoked to support the decision to restore the appeals.

Analysis:
Ultimately, the Miscellaneous Applications were allowed, restoring the appeals to file. The Registry was instructed to schedule the appeals for a hearing on a specified date. Both parties acknowledged the next hearing date in court, eliminating the need for separate notices.