9911796707
TMI Blog2021 (9) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... India Limited; that the income received for such services was taxable in India; and that the 2nd respondent issued a draft assessment order dt.30.12.2019 under Section 147 read with Section 144C(1) of the Income Tax Act, 1961 (hereinafter referred to as, 'the Act'), to which it was required to file objections, if any, before the Dispute Resolution Panel (for short 'DRP') within 30 days. 3. The petitioner would further contend that as the petitioner did not choose to file objections to the draft assessment order within a period of 30 days as provided under the Act, i.e. by 29.01.2020, the 2nd respondent passed the Final order confirming the proposals contained therein on 10.02.2020. 4. It is also the contention of the petitioner that against the Final order passed by the 2nd respondent, the petitioner could file an appeal to the Commissioner (Appeals) under Section 246A of the Act; and that the time limit for filing such appeal was available till 11.03.2020. 5. As in the meantime, the Ministry of Finance, Government of India, had introduced DTVSV Scheme with the object of settling tax disputes arising under the Act, the petitioner did not file an appeal against the Final order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long pending tax disputes, the 3rd respondent by the Circular issued has expanded the scope of applicability by including the cases where draft assessment order was passed, but no final order has been passed before the specified date. Thus, the petitioner contends that having regard to the scheme of the DTVSV Act, the `rejection of the petitioner's declaration by the 1st respondent is contrary to law and vitiated. 10. A counter affidavit on behalf of the 1st respondents is filed. 11. The respondents would contend that as the petitioner did not choose to file objections to the draft assessment order dt.30.12.2019, within 30 days, it has to be presumed that the petitioner has accepted the proposals as made in the draft assessment order; and that the petitioner cannot be considered as an 'appellant' as defined under Section 2(1)(a) of the DTVSV Act, as the petitioner did not dispute to the additions proposed in the draft assessment order. Thus, as no dispute exists as on the 'specified date', a sine qua non for availing the scheme, the petitioner is not entitled to avail the benefit under the DTVSV Act. 12. The respondents would further contended that as the petitioner did not file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Minister, Government of India, on 05.02.2020 as part of Budget Proposals for the year 2020-21. The said Bill was passed by Lok Sabha on 04.03.2020 and by the Rajya Sabha on 14.03.2020. Thereafter, it had received the assent of the President on 17.03.2020 and had thus, become an Act of Parliament from the said date. 18. However, while the Bill was under consideration before the Lok Sabha, having regard to queries received from the stakeholders seeking clarifications in respect of various provisions contained in the Scheme, the 3rd respondent / CBDT had issued Circular No.7/2020 dt.04.03.2020 providing clarification on various queries received in the form of answers to frequently asked questions (FAQs). When an objection was sought to be raised by some of the members of the Lok Sabha with regard to the CBDT issuing the circular even before the Bill was passed by both the Houses of Parliament and becoming an Act, the Hon'ble Finance Minister had clarified, that the said circular issued by the CBDT is only in the nature of guidance to enable the stakeholders to get an understanding to avail the benefit of the scheme and that the said clarification provided is subject to the Bill getti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections with DRP and the AO has not yet passed the final order? Answer: Yes, a person who has filed his objections before the DRP under Section 144C of the Act and the DRP has not issued any direction on or before the specified date as well as a person in whose case the DRP has issued directions but the AO has not passed the final assessment order on or before the specified date, is eligible under Vivad se Vishwas. It is further clarified that there could be a situation where the AO has passed a draft assessment order before the specified date. Assessee decides not to file objections with the DRP and is waiting for final order to be passed by the AO against which he can file appeal with Commissioner (Appeals). In this situation even if the final assessment order is not passed on or before the specified date, the assessee would be considered as the appellant and would be eligible to settle the dispute under Vivad se Vishwas. Disputed tax in such cases would be computed based on the draft order. In the declaration in Form No.1, the declarant in this situation should indicate in the appropriate schedule that time to file objections with DRP has not expired." 26. A close reading o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification No.7/2020), makes it clear that in the event of passing of final order by the AO against which an assessee 'can' file an appeal with the Commissioner, the assessee is eligible to avail the benefit of the Scheme. The use of the word 'can' denotes 'possibility'. In the given circumstances, if there a 'possibility' of filing an appeal, which invariably exists against the final order passed by an AO, the same would suffice, and it is not necessary that an appeal is actually filed. 31. Thus, where a person has possibility to file an appeal against final order, such person would be considered as 'appellant' eligible to avail the benefit under the DTVSV Act. 32. Further, it is also to be seen that in the facts of the present case, since, the time limit for filing objections to the draft assessment order had expired on 29.01.2020, the assessing officer was free to pass final order confirming the proposals made in the draft assessment order from the following day itself, as the Act only mandates that an order should be passed within 30 days from the date of filing objections to the draft assessment order. 33. If the assessing officer had passed a final order on 30.01.2020, det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.03.2020, getting approved in the other House of the Parliament, namely, Rajya Sabha, and receiving the assent of the President was only a matter of time and admittedly did happen too. 40. Further, it is also to be noted that the Bill as presented and approved by one House of the Parliament had laid down the terms of eligibility clearly. It is not in dispute that there has been no change as to the applicability, 'specified date', 'appellant' or 'disputed tax' as stated in the Bill presented in Lok Sabha on 05.02.2020, and the DTVSV Act as enacted on 17.03.2020. 41. Thus, the contention of the respondents that the petitioner could not have anticipated of the enactment of DTVSV Act between January, 2020 to March, 2020, during which period the time specified for filing objections, filing appeal against the Final order has lapsed, is without substance and is liable to be rejected. 42. The other contention of the respondents is that the eligibility or otherwise of the petitioner to avail benefit under the scheme would have to be determined by considering the clarification issued in Question No.16, in its entirety i.e. including the last part of the said clarification which reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
