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TMI Blog2021 (9) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... ent on or before the 27th September, 2021. The payment allowed to be made on or before 30th September, 2021 considering the outer time limit set under the scheme. Any other consequential declarations if needed to be allowed, no delay shall be caused by the authority concerned. - R/SPECIAL CIVIL APPLICATION NO. 11847 of 2021 - - - Dated:- 21-9-2021 - HONOURABLE MS. JUSTICE SONIA GOKANI And HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN MR SN DIVATIA(1378) for the Petitioner MRS MAUNA M BHATT(174) for the Respondent ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1. Rule. Mrs. Mauna Bhatt, learned Senior Standing Counsel waives service of notice of rule on behalf of the respondent. By consent of the parties, rule is fixed forthwith. 2. The petitioner is here by way of petition under Article 226 of the Constitution of India is challenging the legality of the orders passed on 23rd February, 2021 and 12th April, 2021 under Section 5 of the Direct Tax Vivad Se Vishwas Act, 2020 ( VSV Scheme for short) by the respondent whereby the declaration filed by the petitioner in the Form-1 and Form-2 of the Vivad Se Vishwas Scheme has been rejected and he has been dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 5 under the VSV Scheme. (c) to issue a writ of certiorari or in the nature of certiorari or any other appropriate writ, orders or directions to the respondent to allow the petitioner to pay amount so determined under the scheme within reasonable time. (d) to call for the records of the proceedings, look into them and be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing the impugned orders dated 23rd February, 2021 and 12th April, 2021 (Annexure-A). (e) Pending the hearing and final disposal of this petition to maintain status quo in the matter and ask the respondent and its subordinates not to take any action or to do anything in furtherance and pursuance of this impugned notice. (f) To provide the copy of the audit objection and response given by the respondent to the same. (g) To allow this petition with cost. (h) To pass any further or other orders as the Hon ble Court may deem proper in the interest of justice and in the circumstances of the case. 7. We have heard extensively Mr. S.N. Divetia, learned advocate for the petitioner and Ms. Mauna M. Bhatt, learned Senior Standing Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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; (iii) a person who has filed his objections before the Dispute Resolution Panel under section 144C of the Income-tax Act, 1961 (43 of 1961) and the Dispute Resolution Panel has not issued any direction on or before the specified date; (iv) a person in whose case the Dispute Resolution Panel has issued direction under sub-section (5) of section 144C of the Income-tax Act and the Assessing Officer has not passed any order under subsection (13) of that section on or before the specified date; (v) a person who has filed an application for revision under section 264 of the Income-tax Act and such application is pending as on the specified date; [Explanation.-For the removal of doubts, it is hereby clarified that the expression appellant shall not include and shall be deemed never to have been included a person in whose case a writ petition or special leave petition or any other proceeding has been filed either by him or by the income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ications of the assessee will be passed in all cases within week by CsIT (AU)s. However, no information has been received from NFAC / respective CsIT (AU)s as to whether the delay has been condoned in this case. Under the circumstance, declaration filed is hereby rejected. 10. At this juncture, it would be relevant to refer to the decision of Supreme Court in case of Commissioner of Income Tax v. Shatrusailya Digvijaysingh Jadeja, relied upon by the learned Senior Advocate Mr. Hemani, in which the S.C. had an occasion to deal with the issue, as to whether, the department could have rejected the Declaration filed under the similar scheme called Kar Vivad Samadhan Scheme, introduced vide the Finance [No.2] Act 1998, on the ground that the Revision / Appeal filed by the concerned Petitioner was time barred or was not valid. In the said case, the Supreme Court considered the object of the said Scheme as also the other earlier decisions, and observed as under: 13. In our view, the Scheme was in substance a recovery scheme though it was nomenclatured as a litigation settlement scheme and was not similar to the earlier Voluntary Disclosure Scheme. As stated above, the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held that an appeal does not cease to be an appeal though irregular and incompetent. 11. In view of the aforestated legal position, there remains no shadow of doubt that appeal could be said to be pending, even if the delay occurred in filing the same was not condoned and even if it was allegedly irregular or incompetent. In the instant case therefore also, the Respondent could not have rejected the Declaration Form of the Petitioner filed under the said Act merely on the ground that the Appeal was not valid or competent, as the delay occurred in filing the Appeal was not condoned by the Appellate Authority. In the opinion of the Court, the Respondent had to only take into consideration, as to whether, the Petitioner had filed an Appeal, and the same was pending on the specified date i.e. 31.1.2020. It was not for the Respondent to decide, as to whether, such Appeal was irregular or incompetent or invalid in the eye of law. 12. In that view of the matter, the impugned communication dated 22.2.2021, displayed on the Portal of the Department, rejecting the Declaration filed by the Petitioner under the said Act, deserves to be quashed and set aside, and is accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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