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TMI Blog2024 (12) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... as set out in the said section. The term declarant is defined u/s 2 (1)(c) of the DTVSV Act to mean a person who files a declaration u/s 4 of the DTVSV Act. As is apparent from the aforesaid definition, the term tax arrears would include the aggregate amount of disputed tax as well as interest chargeable or charged on such disputed tax. The expression disputed tax is defined in clause (j) of Section 2 (1) of the DTVSV Act. It is necessary to note that the DTVSV Act also contains provisions to address the question of disputes when an order has been passed by the AO, CIT(A), or the learned ITAT and the time for filing the appeal against the said order has not expired. In such cases, the person in whose case such an order has been passed would also fall within the meaning of the term appellant as defined u/s 2 (1)(a) of the DTVSV Act. In such cases, the disputed tax would amount to the tax payable by the appellant after giving effect to the order so passed. In the present case, Assessee had filed a declaration in respect of its appeal. The disputed tax paid is confined to the tax, interest and penalty payable in respect of the loss in derivatives which was the subject matter of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive appeals against the order dated 25.07.2014 rendered by the CIT(A). The Revenue appealed the CIT(A) s decision to the extent that the Assessee had succeeded and the Assessee appealed the decision to the extent that it hadn t. The learned ITAT, by its order dated 09.12.2019, allowed the Assessee s appeal (being ITA No. 5958/Del/2014), but did not accede to the Revenue s appeal (being ITA No. 5411/Del/2014). The Revenue has assailed the said order dated 09.12.2019 passed by the learned ITAT in the said appeals by filing a common appeal (being ITA No. 143/2021), which is pending before this Court. 4. It is the Revenue s contention that the Assessee is also required to settle the disputes as covered under ITA 5411/Del/2014 captioned ITO Ward-15 (4) v. Rose Wood Buildwell Private Limited, which was also disposed of by the learned ITAT by the order dated 09.12.2019. FACTUAL CONTEXT 5. The Assessee is a company engaged in the business of real estate. The Assessee had filed its return of income for the AY 2008-09 on 31.08.2012. The same was selected for scrutiny and the Assessing Officer (AO) issued an assessment order dated 10.03.2014 under Section 143 (3) of the Act making a total add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenge to the addition of Rs. 3,50,00,000/- under Section 68 of the Act. The learned CIT(A) found that the Assessee had established the identity and creditworthiness of his shareholders. Therefore, an addition under Section 68 of the Act was not justified. Accordingly, the addition of Rs. 3,50,00,000/- to the Assessee s income was deleted. 12. The Assessee preferred an appeal [being ITA No. 5958/Del/2014] against the decision of the learned CIT(A) insofar as it rejected the Assessee s challenge to the addition of Rs. 50,12,337/- claimed towards loss in trading of commodity derivatives. The Revenue also preferred an appeal [being ITA No. 5411/Del/2014] against learned CIT(A) s order dated 25.07.2014 insofar as it deleted the addition of Rs. 3,50,00,000/- as unexplained credit under Section 68 of the Act. Both the appeals ITA No. 5958/Del/2014 ITA No. 5411/Del/2014 were disposed of by the learned ITAT by an order dated 09.12.2019. Insofar as the Assessee s challenge to the addition of Rs. 50,12,337/- is concerned, the learned ITAT noted that the Assessee had produced all the relevant documents to establish that it had suffered the loss as claimed. However, the said transactions h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58/Del/2014) and was disposed of by the learned ITAT by its order dated 09.12.2019. 18. Section 3 of the DTVSV Act provides that where a declarant files a declaration before the designated authority in accordance with Section 4 of the DTVSV Act in respect of tax arrears then notwithstanding anything contained in the Act or any other law for the time being in force, the amount declared as payable would be computed in accordance with the tabular statement as set out in the said section. 19. The term declarant is defined under Section 2 (1)(c) of the DTVSV Act to mean a person who files a declaration under Section 4 of the DTVSV Act. 20. The expression tax arrears as defined in clause (o) of Section 2 (1) of the DTVSV Act and reads as under: 2. Definitions. (1) In this Act, unless the context otherwise requires, *** *** *** (o) tax arrear means, (i) the aggregate amount of disputed tax, interest chargeable or charged on such disputed tax, and penalty leviable or levied on such disputed tax; or (ii) disputed interest; or (iii) disputed penalty; or (iv) disputed fee, as determined under the provisions of the Income-tax Act. 21. As is apparent from the aforesaid definition, the term tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income Tax Appellate Tribunal in an appeal, or by the High Court in a writ petition, on or before the specified date, and the time for filing any appeal or special leave petition against such order by that person has not expired as on that date; 24. It is apparent from the above that the expression appellant also refers to a person in whose case an appeal has been filed either by him or by the income tax authority or by both. A reading of Section 2 (1) (j) (A) in conjunction with Section 2 (1) (a) (i) of the DTVSV Act makes it clear that the disputed tax, which would be a subject matter of settlement as tax arrears, is required to be determined on the basis of subject matter of the appeal (whether filed by the Assessee or by the Revenue) before the appellate forum. 25. Section 4(1) of the Act provides for the declarant filing a declaration as referred to in Section 3 of the DTVSV Act before the designated authority in such form and verified in such a manner as may be prescribed. It is relevant to refer to Sub-section (2) of Section 4 of the DTVSV Act, which reads as under: 4. Filing of declaration and particulars to be furnished *** *** *** (2) Upon the filing the declaration, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of the revenue that under the DTVSV Act the unit of settlement is an assessment year is contrary to its own stand as the Department has no grievance with the petitioner not settling the appeal filed by it for the same assessment year, but requires the petitioner to settle all the Departmental appeals for an assessment year. In fact, the aforesaid position is not borne out from any provision of the DTVSV Act or the Rules. Consequently, the unit for settlement of dispute under the DTVSV Act, 2020 is an appeal, writ petition or SLP and not the assessment year as had been canvassed by the revenue. 36. Even assuming that the DTVSV Act is a taxing statute, there is no restriction on an assessee to choose an appeal to be settled under the DTVSV Act as Section 2 (1) (j) uses the words any appeal which even on a literal interpretation would mean any one or more appeals. 37. Moreover, the issues raised by the Department in the SLP filed before the Supreme Court is in respect of deduction for salary paid to expatriates and the applicability of Section 115JB of the Act. However, this issue is not at all connected with the deemed appeal arising from the order of the Tribunal dated 16th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase ITAT has passed order giving relief on two issues and confirming three issues. Time to file appeal has not expired as on specified date. The taxpayer wishes to file declaration for the three issues which have gone against him. What about the other two issues as the taxpayer is not sure if the department will file appeal or not? Answer : The Vivad se Vishwas allow declaration to be filed even when time to file appeal has not expired considering them to be a deemed appeal. Vivad se Vishwas also envisages option to assessee to file declaration for only his appeal or declaration for department appeal or declaration or both. Thus, in a given situation the appellant has a choice, he can only settle his deemed appeal on three issues, or he can settle department deemed appeal on two issues or he can settle both. If he decides to settle only his deemed appeal, then department would be free to file appeal on the two issues (where the assessee has got relief) as per the extant procedure laid down and directions issued by the CBDT. 32. The aforesaid clarification also underscores the principle that the unit of settlement is an appeal and includes a prospective appeal. 33. In the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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