TMI Blog2022 (6) TMI 1123X X X X Extracts X X X X X X X X Extracts X X X X ..... atutory 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. Delay in filling in appeal - period of limitation - scope of condonation of delay - as argued Circular dated 4th December, 2020 covers cases only when the appeals are filed with an application for condonation of delay between 1st April, 2019 and 31st January, 2020 and the appeal in the assessee s case was filed before this Court on 8th January, 2021 and therefore in terms of the Circular, an application under the VSV Act is not maintainable - One important issue which the revenue has lost sight of is that the appeal which is filed before this Court on 8th January ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he revenue dated 9th September, 2021 is not sustainable and not in accordance with law. In the result, the writ petition is allowed. The order dated 9th September, 2021 as well as the earlier reply as given by the revenue to the assessee namely, letter dated 15th July, 2021, are held to be bad in law and accordingly quashed. The scheme had been periodically extended and one has to look to the object for such extension and one of the objects was to augment the revenue and if that was the object of the scheme then liberal interpretation requires to be given, however, not to the extent of reviving the scheme but to consider the declaration filed under the scheme will before the closure of the scheme and to direct them to be processed in accordance with law. We direct the concerned respondent to restore the Form 3 declaration dated 27th January, 2021 which was withdrawn/deleted from the server of the Department and process the Form 3 declaration in accordance with law. This direction be complied with by the appropriate respondent within a period of eight weeks from the date of receipt of the server copy of this order. - WPA/18282/2021 And ITA/2/2021 - - - Dated:- 1-4-2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l before this Court on 8th January, 2021 and the delay in filing the appeal was condoned and the appeal was admitted on 20th January, 2021 and the declaration filed by the assessee having been filed after the date of issue of the Circular dated 4th December, 2020 issued by the CBDT, the declaration filed under the VSV Act cannot be accepted and for such reason the Form 3, dated 27th January, 2021, which was issued, was stated to have been issued inadvertently and therefore cancelled. In the impugned order, the revenue refers to Question no.59 as contained in the Circular No.21/2020, dated 4th December, 2020, issued by the CBDT which, according to the revenue, is in the nature of a clarification with regard to the applicability of the provisions of the VSV Act. Question no.59 and answer given thereunder are quoted below :- Q. No.59. Whether the taxpayer in whose case the time limit for filing of appeal has expired before 31st January, 2020 but an application for condonation of delay has been filed is eligible? Answer : If the time limit for filing appeal expired during period from 1st April, 2019 to 31st January, 2020 (both dates included in the period) and the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Circular, an application under the VSV Act is not maintainable. One important issue which the revenue has lost sight of is that the appeal which is filed before this Court on 8th January, 2021 was time barred and there was a delay of 400 days in filing the appeal. Even prior to filing the appeal the assessee had filed the declaration under the VSV Act on 30th December, 2020. This appears to have been done by abundant caution mentioning the cut off date as 31st January, 2020 in column B of the Declaration. The assessee was put on notice and the affidavit and the application for condonation of delay along with the memorandum of grounds were served on the assessee and soon after receipt of the same on 12th January, 2021 a revised declaration under the VSV was filed mentioning the relevant details. On 21st January, 2021 delay in filing the appeal was condoned and the appeal was also admitted. The question would be as to what is the effect of the condonation of the delay in filing the appeal. The last date for filing the appeal was 13th December, 2019 but the appeal was filed only on 8th January, 2021. Consequently, there was a delay of 400 days. By virtue of the order passed by thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revenue to the assessee namely, letter dated 15th July, 2021, are held to be bad in law and accordingly quashed. The learned Standing Counsel appearing for the revenue would contend that the Scheme has come to an end and at this juncture the question of processing the declaration of the assessee does not arise. We do not agree to the said contention for more than one reason. Firstly, the provisions of VSV Act and the Scheme availed thereunder had a cut off date which cut off date was extended and the last of such extension was till 31st October, 2021. Therefore, it may be true that as on date the Scheme is no longer in vogue but it is incorrect to state that the Department will not act on declarations which have been filed by the assessee or in cases where the assessee had approached the court and courts grant certain reliefs directing the Department to process the declaration form. Therefore, the officers of the Department which have been entrusted with the assignment of considering the declaration filed under the Scheme do not become functus officio and would continue to exercise their power. That apart, the scheme had been periodically extended and one has to look to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meant to account for its undisclosed income in the garb of Long Term Capital Gain ? e) Whether the Income Tax Appellate Tribunal order was erroneous in law in accepting the transactions in purchase/side of shares as genuine, merely on the basis of documents supplied by the assessee, without piercing the veil of the manipulative and fraudulent transactions entered by assessee in collusion with a cabal of share brokers and entry operators for the purpose of tax evasion ? We have heard Mr. Smarajit Roychowdhury, learned Standing Counsel, assisted by Mr. Soumen Bhattacharya, learned Advocate appearing for the revenue and Mr. Abhratosh Majumder, learned Senior Counsel, assisted by Mr. Avra Majumder. In this appeal we may not be required to answer the substantial questions of law in the light of the fact that the respondent/assessee had filed declaration under the provisions of the Vivad Se Viswas Act (VSV Act) and though the declaration was processed and Form 3 was issued on 27th January, 2021, subsequently it was withdrawn from the server of the Department. This compelled the assessee to submit representation to the Department and the representation was rejected by order date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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