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TMI Blog2022 (6) TMI 1123X X X X Extracts X X X X X X X X Extracts X X X X ..... with Section 115 WE(3). Aggrieved by such order, the assessee preferred appeal before the Commissioner of Income Tax (Appeal-VI), Kolkata (CIT). By order dated 10th April, 2019 the appeal was dismissed. Challenging the same the assessee filed appeal before the Income Tax Appellate Tribunal (Tribunal). The appeal was allowed by order dated 2nd August, 2019. Aggrieved by such order the revenue has filed appeal before this Court being ITAT 7 of 2021, which was admitted on 20th January, 2021 after condoning the delay of 400 days in filing the appeal. Before the Tribunal, the assessee had filed MA 224/Kolkata/2019 seeking certain clarification in the order passed by the Tribunal dated 2nd August, 2019 deleting the addition of unexplained cash credit under Section 68 of the Act. The said application was allowed as prayed for. Aggrieved by the same, the revenue has filed ITAT 73 of 2021, which is yet to be admitted. As noted above, the assessee did not wish to contest the matter and precisely for such reason had filed a declaration under VSV Act on 30th October, 2020. The said declaration was processed and Form 3 was issued to the assessee on 27th January, 2021. The events which took pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, the revenue would contend that they are guided and bound by the terms and conditions of the VSV Act and until and unless there is a specific provision provided for under the Act or the Rules framed thereunder, the assessee has no right to make any alteration. If the same stand is applied to the case of the revenue before us, the only answer which can be given is that once a declaration is issued in Form no.3, there appears to be no statutory provision which permits the Department to withdraw or cancel the Form 3. It may be a different aspect if there are reasons for either not fully accepting the Form 3 declaration while issuing Form 4 declaration or for any other reasons, which is not the case before us. Therefore, we are of the prima facie view that the Form 3 declaration once having been issued can be processed and taken to its logical end either may be fully in favour of the assessee or otherwise but there appears to be no provision to withdraw Form 3 declaration which was admittedly issued in favour of the assessee on 27th January, 2021. The second issue would be whether the revenue can now contend that Circular dated 4th December, 2020 covers cases only when the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the revenue before this Court for all purposes should be treated to have been an appeal filed not later than 13th December, 2019. In such circumstances, the petitioner/assessee was well within his right to have chosen to avail the benefit of the VSV Act and the declaration filed by the assessee has to be treated to be a valid declaration and has to be processed in accordance with the provisions of the VSV Act. The other aspect would be whether the revenue can take advantage of its wrong. In other words, the revenue now seeks to contend that the assessee cannot avail the benefit of the Scheme on the ground that the appeal was filed by them much after 31st January, 2020, that is, on 8th January, 2021 alone and therefore, in terms of the clarification issued by the CBDT the declaration cannot be entertained. The Hon'ble Supreme Court in Superintendent of Taxes, Dhubri & Ors. vs. M/s. Onkarmal Nathmal Trust, reported in (1976)1 SCC 766 held that the State cannot take advantage of its own wrong and lack of diligence. This principle would apply with full force to the case on hand. Thus, in the light of the above discussion, we are of the clear view that the order passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 260A of the Income Tax Act, 1961 is directed against the order dated 2nd August, 2019 passed by the Income Tax Appellate Tribunal "B" Bench, Kolkata in ITA No. 1164/Kol/2019 for the assessment year 2014-15. The revenue has suggested following substantial questions of law for consideration. a) Whether the assessee is entitled to tax exemption u/s. 10(38) when the records and material indicates that the alleged income shown as Long Term Capital Gain is result of manipulated practice of an organized tax evasion ? b) Whether the order of the Income Tax Appellate Tribunal was erroneous in law in deleting the addition of Rs. 24,28,532/- (Rs. 23,72,470/- + Rs. 56,062/-) ignoring the large scam of tax evasion by way of bogus capital gain generated in penny stock ? c) Whether the Income Tax Appellate Tribunal was justified in granting relief to the assessee on account of addition made u/s. 68 by the Assessing Officer of Rs. 24,28,532/- (Rs. 23,72,470/- + Rs.56,062/-) by dismissing the appeal of the revenue on monetary criteria only ? d) Whether the Income Tax Appellate Tribunal was justified in granting relief to the assessee on account of addition made u/s. 68 of the Income ..... 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