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TMI Blog2021 (7) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 assessing business profits attributable to permanent establishment (PE) at Rs. 31,25,060/-. Being aggrieved by the said order, an appeal was filed before the Commissioner of Income Tax (Appeals) ["CIT(A)"] on 28th April, 2005. The CIT(A), by its order dated 15th May, 2006 deleted the addition, holding that Petitioner does not have a PE in India. Thereafter, the assessing officer filed Appeal before the Tribunal on 11th August, 2006. The Tribunal, by its order dated 1st April, 2015, restored the issue to the file of the assessing officer. Against the said order, Petitioner filed an Appeal before this Court on 23rd September, 2015 under Section 260A of the IT Act. Petitioner also filed Miscellaneous Application before the Tribunal, which came to be rejected by an order dated 21st August, 2018. Thereafter, on 29th August, 2018, this Court in Income Tax Appeal No.1198 of 2015 with Income Tax Appeal No.260 of 2016 with Income Tax Appeal No.264 of 2016 passed an order setting aside both the orders of the Tribunal, viz., the order dated 1st April, 2015 restoring the issue to the file of the assessing officer as well as the order dated 21st August, 2018 dismissing the Miscellaneous Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the First Appellate Authority was right or the Assessing Officer. This having admittedly not been done, we are of the firm opinion that the Tribunal failed to act as a last fact finding authority. It failed to discharge its duty and function expected of it by the law. We have no hesitation, therefore, in answering question nos.1 and 2 as reproduced above in favour of the Assessee and against the Revenue. 28. Having thus answered these substantial questions of law, we set aside the order of the Tribunal. We cause no prejudice to the parties but balance their rights and equities. We restore the Revenue's Appeal to the file of the Tribunal for a decision afresh on merits and in accordance with law. 29 Needless to clarify therefore, that the initial order dated 1st April, 2015 and the order on the Miscellaneous Applications for rectification are quashed and set aside There shall be no order as to costs. 30. All the three Appeals are disposed of accordingly." 4. With the enactment of the DTVSV Act on 17th March, 2020, Petitioner made declaration in Form-1 along with Undertaking in Form-2 according to the provisions of the DTVSV Act and the Rules thereunder indicating that an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply dated 14th June, 2021. It is submitted on behalf of Revenue that Revenue had filed an Appeal before the ITAT and ITAT directed restoration of the issue back to the assessing officer for fresh adjudication and that the said decision of the ITAT was accepted by the Revenue. He submits that the assessee thereafter filed an Appeal before the Bombay High Court against the said order of the ITAT. The Bombay High Court has restored the matter to the ITAT for fresh consideration. He submits that ITA No.4632/MUM/2006 has been restored on the assessee's Appeal and, therefore, the dispute pending before the ITAT is assessee's Appeal and not of the Revenue; the Appeal currently in adjudication being assessee's Appeal, it justifies levy of 100% tax as per the DTVSV Act and not 50% of the disputed tax. 8. We have heard Shri Pardiwalla, learned Senior Counsel, on behalf of Petitioner and Ms. Bharucha, learned Counsel for Respondents and with their able assistance, we have perused the papers and proceedings in the matter. 9. Petitioner has filed Form-1 stating that it is eligible for payment of 50% of disputed tax as according to Petitioner the pending appeal is Revenue Appeal, whereas dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or charged on such disputed tax and penalty leviable or levied on such dispute tax, the excess shall be ignored for the purpose of computation of amount payable. (C) where the tax arrear relates to disputed interest or disputed penalty or disputed fee. twenty-five per cent. of disputed interest or disputed penalty or disputed fee. thirty per cent. of disputed interested or disputed penalty or disputed fee: Provided that in a 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 above calculated on such issue, in such manner as may be prescribed: Provided further that in a case where an appeal is filed before the Commissioner (Appeals) or objections is filed before the Dispute Resolution Panel by the appellant on any issue on which he has already got a decision in his favour from the Income Tax Appellate Tribunal (where the decision on such issue is not reversed by the High Court or the Supreme Court) or the High Court (where the decision on such issue is not reversed by the Supreme Court), the amount payable shall be one-ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n favour of the assessee and against the Revenue and set aside the order of the Tribunal. This Court restored the Revenue's Appeal to the file of the Tribunal for a decision afresh on merits and in accordance with law. 13. The matter is, therefore, pending before the ITAT for fresh adjudication and this is the dispute, which Petitioner is desirous of settling under the DTVSV Act. Relevant factual aspects are not in dispute. Against order of departmental assessing officer at first rung, appeal under Section 246 of the IT Act had been preferred by the assessee/petitioner to the CIT(A) and the same was decided in its favour. Aggrieved by the decision of CIT(A), the Revenue-Respondent preferred an Appeal bearing No. 4632/MUM/2006 before ITAT as provided under Section 253 of the IT Act. Against order of remand passed by ITAT, Petitioner preferred appeal before this Court under Section 260A of the IT Act. The substantial questions of law in appeal before this Court were tested and the matter resulted in setting aside order of ITAT, restoring the Appeal No.4632/MUM/2006 before ITAT for decision pursuant to aforementioned orders of this Court. What had been revived in the process, is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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