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Mr. Rakesh Kumar Tongar Versus The ITO, Ward-3 (3) , Income Tax Office, Noida

Penalty u/s 271(1)(c) - unexplained cash credit under section 68 - benefit of Direct Tax Dispute Resolution Scheme, 2016 and Pr. CIT, Noida has issued certificate in favour of assessee - Held that:- The assessee has filed copies of sections 202 and 203 of the Direct Tax Dispute Resolution Scheme, 2016 and explained that the above Scheme will supersede the provisions contained under the Income Tax Act on filing the declaration and accepted by the Designated Authority. The Rule also provides for d .....

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ions of Income Tax Act and the appeal pending before Ld. CIT(A) shall be deemed to have been withdrawn. - However, these submissions have not been made by the assessee before the Ld. CIT(A) and assessee did not appear before Ld. CIT(A) to appraise him of all the relevant provisions of the special Scheme enacted by the Direct Tax Dispute Resolution Scheme, 2016. The assessee also did not make request to withdraw appeal. The matter therefore, requires reconsideration at the level of the Ld. C .....

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- Dated:- 13-9-2017 - SHRI BHAVNESH SAINI, JUDICIAL MEMBER For The Assessee : Shri Sameer Kapoor, C.A. For The Revenue : Shri T. Vasanthan, Sr. D.R. ORDER This appeal has been directed against the order of Ld. CIT(A)-1, Noida, dated 23rd February, 2017, for the A.Y. 2009-2010, challenging the dismissal of assessee s appeal under section 271(1)(c) of the I.T. Act, 1961. 2. Briefly the facts of the case are that the assessee filed return of income declaring net income of ₹ 1,56,790. The A.O. .....

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al on record noted that before considering the merits of the case or the lack of the same, it is necessary to consider the peculiar legal issue which has arisen in this case without there being any fault on the part of the assessee and which is solely because of the confusion created by the Finance Act, 2016 under Chapter-X providing The Direct Tax Dispute Resolution Scheme, 2016 which has consciously chose not to supersede or override the provisions of Income Tax Act under section 251(1)(a) und .....

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l or writ petition with the leave of the Court wherever required and furnish proof of such withdrawal along with the declaration referred to in sub-section (1) of Section 203 of the Finance Act, 2017. The Ld. CIT(A) further noted that section 251(1)(a) of the I.T. Act provides that in disposing of an appeal, the Commissioner (Appeal) shall have powers in an appeal against the order of assessment to confirm, reduce, enhance or annul assessment and in an appeal against the order imposing penalty t .....

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cate in Form-5, Under Rule-6 of the Direct Tax Dispute Resolution Scheme, 2016, certifying that the assessee had paid an amount of ₹ 5,50,750 being 25% of the amount of the penalty imposed by the A.O, though, the pending appeals was neither withdrawn by assessee nor was permitted to be withdrawn by the undersigned. The Ld. CIT(A) also noted that assessee has not made any application for withdrawal of the appeal. Therefore, appeal is decided with the presumption that though the assessee has .....

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16 being an enabling Act will prevail over the provisions of I.T. Act, in case, there being any conflict between the two. The Ld. CIT(A) further noted that Chapter-X of the Finance Act, 2016 running from Sections 200 to 211 nowhere provides supersession of provisions of Section 251(1)(a) of the I.T. Act. The Ld. CIT(A) is not permitted to allow withdrawal of appeal which is also not asked by assessee. The Ld. CIT(A) accordingly, proceeded to decide the appeal on merit and dismissed the appeal of .....

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ted that as per Rule 203(2) of the Direct Tax Dispute Resolution Scheme, 2016 Where declaration is in respect of tax arrear, consequent to such declaration, the appeal in respect of the disputed income, disputed wealth and tax arrear pending before the CIT(A) or Commissioner of Wealth Tax (A) as the case may be shall be deemed to have withdrawn . Sub-Rule(5) of Rule 203 of the Direct Tax Dispute Resolution Scheme, 2016 also provides that no Appellate Authority or Arbitrator, Conciliator or media .....

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submitted that since assessee did not appear before the Ld. CIT(A) and no such contentions have been raised, therefore, matter may be remanded to the Ld. CIT(A) for fresh disposal in accordance with law. 6. I have considered the rival contentions. The Ld. CIT(A) mainly considered the provisions of section 251(1)(a) of the I.T. Act on the proposition that in disposing of the appeals, the Commissioner (Appeal) shall have power to confirm the assessment, reduce, enhance or annul the assessment and .....

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