[Analysis] Direct Tax Vivad Se Vishwas Scheme 2024 – How to Compute Disputed Tax?

The Computation of Disputed Tax under the Direct Tax Vivad Se Vishwas Scheme 2024 involves calculating the tax amount related to disputes pending as of 22nd July, 2024. This includes cases where taxpayers have challenged tax assessments, additions, or disallowances made by tax authorities. The computation takes into account the total disputed income, interest, and penalties levied and varies based on whether the appeal is pending before different forums like the CIT(A), ITAT, or High Court.
Under the scheme, the disputed tax is calculated by applying the applicable tax rates on the disputed income, along with the interest and penalties related to the case. The payable amount is adjusted based on the timelines of the appeals and whether the taxpayer or the department has filed the appeal. The scheme provides benefits for settling disputes early, with lower amounts payable for declarations filed before specified deadlines. The goal is to provide a quick and efficient resolution to pending tax litigation.

The Finance (No. 2) Act of 2024 has reintroduced the Direct Tax Vivad Se Vishwas Scheme (DTVVS), aimed at accelerating the resolution of pending income-tax disputes. This reintroduction follows the initial rollout of the scheme in 2020. The DTVVS 2024 is designed to facilitate the settlement of appeals pending as of 22nd July, 2024, with significant modifications to enhance efficiency. Notably, the 2024 iteration applies exclusively to non-search cases and features a more defined scope of eligible appeals.

For those seeking to understand how to calculate the “disputed tax” under DTVVS 2024, this article provides practical examples. For comprehensive insights into the scheme’s features, eligibility criteria, and overall implications, refer to the comprehensive FAQs on the Direct Tax Vivad Se Vishwas Scheme, 2024 [2024] 166 Taxmann.com 748.

Example 1 – The taxpayer is a resident individual whose age is less than 60 years. He filed the return of income for the assessment years 2018-19, 2019-20, and 2020-21. During the scrutiny assessment, the Assessing Officer (AO) made additions to the income declared in the return of income for all such assessment years. All additions have been affirmed by the CIT(A). However, in the further appeal, the ITAT deleted some additions and affirmed the remaining additions. The assessee and the revenue both filed appeals to the High Court, which are pending as of 22-07-2024. The appeals to the High Court for the assessment year 2018-19 were filed on or before 31-01-2020, and the appeals for the assessment years 2019-20 and 2020-21 were filed on or after 01-02-2020.

Further details are given below:

Reconciliation of disputed tax amounts in appeal in HC by assessee and department with tax arrears as per the assessment order.

The assessee has a choice to file a declaration with respect to his appeal, departmental appeal, or both. As the assessee and revenue have filed an appeal to the high court, the disputed income and tax shall be computed in the manner specified in Schedule VI and VII of Direct Tax Vivad se Vishwas Rules, 2024.

• Situation 1 – Assessee Opts to Settle Only the Appeal/WP Filed by him in the High Court

In respect of the appeal/writ filed by the assessee and pending, it shall be computed as per Schedule VI under:

Situation 2 – Assessee Opts to Settle Only the Appeal/WP Filed by the Department in the High Court

In respect of the appeal/writ filed by the assessee, it shall be computed as per Schedule VII under:

• Situation 3 – Assessee Opts to Settle Both His and Departmental Appeal/WP Pending in the High Court

If the assessee opts to settle both his and departmental appeal/WP pending in the high court, the net savings will be as follows:

Example 2 – The taxpayer is a resident individual whose age is less than 60 years. He filed the return of income for the assessment years 2018-19, 2019-20, and 2020-21. During the scrutiny assessment, the Assessing Officer (AO) made additions to the income declared in the return of income for all such assessment years. All additions have been appealed against by the assessee to CIT(A) and are pending as of 22-07-2024. The appeals for the assessment year 2018-19 were filed on or before 31-01-2020, and the appeals for the assessment years 2019-20 and 2020-21 were filed on or after 01-02-2020.

Further details are given below.

Where the assessee has filed an appeal to the CIT(A), the disputed income and tax shall be computed in the manner specified in Schedule I of Direct Tax Vivad se Vishwas Rules, 2024. It shall be computed as follows:

Example 3 – An Indian holding company sold shares of its subsidiary company at a loss to its sister concern. The holding company sets off such losses against the capital gains arising from the transfer of land. The Assessing Officer (AO) considered the transaction a colourable device used to reduce the tax liability. The AO rejected the capital loss and recomputed the capital gains. The details of the transactions are as follows:

The assessing officer passed the assessment order and raised the demand order for the following:

The company filed an appeal to CIT(A) against the assessment order but did not get any relief. The assessee then filed an appeal to the ITAT, which is pending adjudication as of 22nd July 2024.

Where the assessee and revenue filed an appeal to the ITAT, the disputed income and tax shall be computed in the manner as specified in Rule 9, read with Schedule XXVII-A of Direct Tax Vivad se Vishwas Rules, 2024. Rule 9 provides the following two options to the assessee to pay tax under this scheme on the disputed tax:

• Include the tax payable on the amount by which loss is reduced in the disputed tax and carry forward the loss by ignoring such amount of reduction in loss (Option 1) or
• Carry forward the reduced amount of loss. In this option, the assessee shall be liable to pay tax, along with interest, if any, as a consequence of carrying forward the reduced amount of loss in subsequent years (Option 2).

The tax implications in both scenarios under this scheme shall be computed as follows:

Assume that the Company A earned the long-term capital gains of Rs. 1 lakh and Rs. 2 lakhs in the subsequent previous years 2022-23 and 2023-24, respectively

If Company A opts for Option 1 and files the declaration on or before 31-12-2024, Schedule XXVII-A to declare the disputed income and disputed tax in respect of the disputed losses shall be filed as follows:

(It should be noted Part D of Form 1 provides that in case the appellant opts to pay tax as per Option 1, this Schedule cannot be filed. In this situation, it appears that the assessee is required to choose from the other relevant Schedules. However, a clarification from the CBDT in this regard may be required).

If Company A opts for Option 2 and files the declaration on or before 31-12-2024, Schedule XXVII-A to declare the disputed income and disputed tax in respect of the disputed losses shall be filed as follows:

* Company A shall be liable to pay interest under Section 234B and Section 234C on the additional tax payable in Option 2.

Notes:

• An assessee may settle only his pending appeal, departmental appeal, or both. However, if he wishes to settle his appeal, he has to settle all issues/disputes covered by his appeal. He cannot pick and choose to settle some issues covered by his appeal and continue to litigate other issues. Likewise, if he wishes to settle a departmental appeal, he has to settle all issues/disputes covered by the departmental appeal. He cannot pick and choose to settle some issues/disputes covered by departmental appeal and continue to litigate other issues.
• The assessee can file one declaration only per order, which may cover only his appeal, departmental appeal, or both appeals.
• If the tax effect of departmental appeals is below the threshold amount fixed by CBDT for preferring appeal, the assessee may, if so advised, apply for dismissal of departmental appeal instead of settling the same under the scheme. Since the assessee cannot file multiple declarations, he may, if so advised, wait for the outcome of his application to the appellate forum for dismissal before deciding whether to settle the departmental appeal under the scheme.
• The above calculations are based on the author’s understanding of the scheme. It may be noted that the actual computation may vary depending on the utility to be made available by the department.

[1] The effective rate under Section 115BBE for the AY 2018-19 is 77.25% (60% tax rate + 25% surcharge + 2% education cess + 1% Secondary and higher education cess). The effective rate under Section 115BBE for the AY 2019-20 and 2020-21 is 78% (60% tax rate + 25% surcharge + 4% health and education cess).

[2] The effective rate under Section 115BBE for the AY 2018-19 is 77.25% (60% tax rate + 25% surcharge + 2% education cess + 1% Secondary and higher education cess). The effective rate under Section 115BBE for the AY 2019-20 and 2020-21 is 78% (60% tax rate + 25% surcharge + 4% health and education cess).

[3] The effective rate under Section 115BBE for the AY 2018-19 is 77.25% (60% tax rate + 25% surcharge + 2% education cess + 1% Secondary and higher education cess). The effective rate under Section 115BBE for the AY 2019-20 and 2020-21 is 78% (60% tax rate + 25% surcharge + 4% health and education cess).

[4] The applicable tax rate for the assessment year 2018-19 shall be 30.90% (30% tax rate + 2% education cess + 1% Secondary and higher education cess). The applicable tax rate for the assessment year 2019-20 and 2020-21 shall be 31.20% (30% tax rate + 4% health and education cess).

[5] The effective rate under Section 115BBE for the AY 2018-19 is 77.25% (60% tax rate + 25% surcharge + 2% education cess + 1% Secondary and higher education cess). The effective rate under Section 115BBE for the AY 2019-20 and 2020-21 is 78% (60% tax rate + 25% surcharge + 4% health and education cess).

[6] The applicable tax rate for the assessment year 2018-19 shall be 30.90% (30% tax rate + 2% education cess + 1% Secondary and higher education cess). The applicable tax rate for the assessment year 2019-20 and 2020-21 shall be 31.20% (30% tax rate + 4% health and education cess).

[7] The effective rate under Section 115BBE for the AY 2018-19 is 77.25% (60% tax rate + 25% surcharge + 2% education cess + 1% Secondary and higher education cess). The effective rate under Section 115BBE for the AY 2019-20 and 2020-21 is 78% (60% tax rate + 25% surcharge + 4% health and education cess).

[8] It is assumed that no surcharge is levied on the income of Company A.

[9] This figure is computing after set off of Rs. 1 lakh of long-term capital gains.

[10] Remaining carried forward loss of Rs. 1,01,894 is set off completely to the extent possible out of the long-term capital gains of Rs. 2 lakhs.