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TMI Blog2022 (11) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... pending appeal shall be deemed to have been withdrawn and further, the moment declarant violates any of the conditions, the appeals which were withdrawn u/s. 4, shall be deemed to have been revived. In the present case, the assessee has violated conditions prescribed under DTVSVS Act, 2020 and thus, even if appeal filed by the assessee is dismissed or deemed dismissal of appeal, the same can be revived the moment the Department notices any of the conditions prescribed therein are violated. Designated authority determines sum payable by declarant under DTVSVS Act, 2020, then the same becomes final and which cannot be challenged by the declarant before any appellate forum. Therefore, we are of the considered view that the Revenue cannot take shelter under sub-section (7) of section 4 of the DTVSVS Act, 2020. In so far as FAQs referred to in Circular 09 of 2020 issued by CBDT, we find that CBDT in question no. 43 47 has clarified the position of the law as per DTVSVS Act, 2020, and in our considered view, said clarification is only on withdrawal of appeal by the declarant after receipt of Form no. 3 (certificate) and further, the legal position of section 4(7) of the DTVSVS Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Appellate Tribunal or Commissioner (Appeals), in respect of the disputed income or disputed interest or disputed penalty or disputed fee and tax arrear shall be deemed to have been withdrawn from the date on which certificate under subsection (1) of section 5 is issued by the designated authority. Section 4(2) of the DTVSVS Act 2020 is as under: 4(2) Upon the filing the declaration, any appeal pending before the Income-tax Appellate Tribunal or Commissioner (Appeals), in respect of the disputed income or disputed interest or disputed penalty or disputed fee and tax arrear shall be deemed to have been withdrawn from the date on which certificate under sub-section (1) of section 5 is issued by the designated authority. 3. In view of the express provision of section 4(2), the appeal pending before Hon'ble Tribunal is deemed to have been withdrawn by the assessee on the day on which the Form-3 is issued u/s 5(1) of DTVSVS Act 2020. Once the appeal is deemed to have been withdrawn, then there is no question of pursuing the appeal by the assessee. 4.4. Sec. 4(3) of DTVSVS Act 2020 states that where the declarant has filed any appeal before the appellate f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount declared by declarant and declarant is not agreeable to DA's determination of amount payable, then whether the appeals No. Answer: Under the amended procedure no appeal is required to be withdrawn before the grant of certificate by DA. After the grant of certificate by DA under section 5, the appellant is required to withdraw anneal or writ or special leave petition pending before the appellant forum and submit proof of withdrawal with intimation of payment to the DA as per the same section. Where assessee has made request for withdrawal and such request is under process, proof of request made shall be enclosed. Similarly in case of arbitration, conciliation or mediation, proof of withdrawal of arbitration/conciliation/mediation is to be enclosed along with intimation of payment to the DA. (emphasis supplied) From the above answer to Q.No. 43, it is clear that even though there is no requirement to withdraw the appeal before the grant of certificate (Form-3) the DA under section 5, the assessee has to withdraw the appeal once the Form-3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermined under that section and thus, Hon ble tribunal cannot proceed to decide the appeal filed by the assessee. The Ld. CIT(DR) further referring to section 10 11 of DTVSVS Act, 2020 and FAQs, more particularly question no. 43 and its answer and question no. 47 and its answer in Circular 9 of 2020 submitted that, the law has been explained by the CBDT and as per which the moment designated authority issues certificate u/s. 5(1) of the DTVSVS Act, 2020, then any appeal pending before the Appellate Tribunal shall deemed to have been withdrawn. Therefore, he, submitted that since, the assessee has filed declaration u/s. 4(1) of the DTVSVS Act, 2020 and the designated authority has issued Form no. 3 u/s. 5(1) of the DTVSVS Act, 2020, the appeal filed by the assessee is deemed to have been withdrawn and thus, the pending appeal before Tribunal cannot be pursued by the assessee. 3. The ld. Counsel for the assessee Shri. Ajit Kumar Choradia, CA, referring to provisions of section 4(6) of the DTVSVS Act, 2020 submitted that as per sub-section (6), the declaration under subsection (1) shall be presumed never to have been made, if, the declarant violates any of the conditions referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 by the designated authority or the payment of sum determined under that section. The assessee contends that appeal filed by the assessee is maintainable in view of sub-section (6) of section 4 of the DTVSVS Act, 2020. The assessee had also negated arguments of the Ld. CIT(DR) on sub-section (7) of section 4 of the DTVSVS Act, 2020. 5. Having heard both the sides and considered relevant provisions of the DTVSVS Act, 2020, we find that as per section 4(2) of the said Act, the moment designated authority issues Form No. 3 (certificate), any appeal pending before the appellate authorities shall be deemed to have been withdrawn from the date on which certificate under subsection (1) of section 5 of the DTVSVS Act, 2020 is issued by the designated authority and there is no dispute on this legal position. However, the very same Act, provides amnesty to the Revenue as well as the assessee by way of section 4(6), as per which the declaration under sub-section (1) shall be presumed never to have been made, if any material particulars furnished in the declaration is found to be false at any stage and further, the declarant violates any of the conditions referred to in this Act, and in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e becomes final and which cannot be challenged by the declarant before any appellate forum. Therefore, we are of the considered view that the Revenue cannot take shelter under sub-section (7) of section 4 of the DTVSVS Act, 2020. In so far as FAQs referred to in Circular 09 of 2020 issued by CBDT, we find that CBDT in question no. 43 47 has clarified the position of the law as per DTVSVS Act, 2020, and in our considered view, said clarification is only on withdrawal of appeal by the declarant after receipt of Form no. 3 (certificate) and further, the legal position of section 4(7) of the DTVSVS Act, 2020. In our considered view, as per section 4(6) of DTVSVS Act, 2020, the law is very clear, in as much as in case the declarant violates any of the conditions, then all the proceedings and claims which were withdrawn u/s. 4 and all the consequences under the Income-tax Act, 1961 against declarant shall be deemed to have been revived. In the present case, the declarant has violated the conditions of payment of tax as determined by the designated authority in Form no. 3. Therefore, appeal filed by the assessee is deemed to have been revived and thus, we are of the considered view, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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