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TMI Blog2021 (7) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... en up for final hearing. 3. The present Petition filed by the Petitioner - Tushare Agro Chemicals, under Article 226 of the Constitution of India, is directed against the impugned communication dated 22.2.2021 (Annexure-F), rejecting the Declaration filed by the Petitioner under "The Direct Tax Vivad se Vishwas Act, 2020 (hereinafter referred to as "the said Act"). 4. The facts in nutshell, giving rise to the present Petition are that during the Financial Year 2012-13, relevant to the Assessment Year 2013-14 (i.e. the year under consideration), the Petitioner was engaged in the business of trading of Pesticides on wholesale basis. The Petitioner had filed its return of income for the year under consideration on 27.9.2013 declaring its tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed the Declaration in the prescribed Form Nos. 1 and 2 on 23.12.2020 under the said Act. However, it was displayed on the E-filing portal of the Respondent that the said Declaration was rejected on 22.2.2021, mainly on the ground that the First Appeal was filed belatedly and there was no information received from the Assessing Officer, as to whether, the delay occurred in filing the Appeal before the Appellate Authority was condoned or not. 5. The learned Senior Advocate Mr. Tushar Hemani appearing with learned Advocate Ms. Vaibhavi K. Parikh for the Petitioner, taking the Court to the Scheme of the said Act, more particularly, the definition of an "Appellant" contained in Section 2(i)(a), submitted that since the Appeal of the Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(a) of the said Act. 7. Before adverting to the submissions made by the learned Advocates for the parties, it would be germane to reproduce the definition of the 'Appellant' as contained in Section 2(i)(a) of the said Act as well as the definition of the 'specified date' as contained in Section 2(i)(n) thereof: "2. (1) In this Act, unless the context otherwise requires,- (a)"appellant" means (i) a person in whose case an appeal or a writ petition or special leave petition has been filed either by him or by the income-tax authority or by both, before an appellate forum and such appeal or petition is pending as on the specified date; (ii) a person in whose case an order has been passed by the Assessing Officer, or an order has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate" means the 31st day of January, 2020; 9. In the light of the aforestated provisions, let's examine as to whether the petitioner could be said to be an "Appellant" within the meaning of Section 2(i)(a) of the said Act or not. In the present Petition, there are certain undisputed facts. It is not disputed that the Appeal filed by the Petitioner electronically on 17.5.2016 against the order of assessment dated 25.2.2016 is pending with the Appellate Authority, though there was delay of 40 days occurred in filing the said Appeal. It is also not disputed that the said delay has not been condoned by the Appellate Authority since the filing of the Appeal. It is stated at the bar by the learned Senior Advocate Mr. Hemani, and not disputed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he declaration under section 88 of the Scheme, it is not for the DA to hold that the appeal/revision was "sham", "ineffective" or "infructuous" as it has. 16. In the case of Raja Kulkarni v. The State of Bombay reported in AIR 1954 SC 73, this Court laid down that when a section contemplates pendency of an appeal, what is required for its application is that an appeal should be pending and in such a case there is no need to introduce the qualification that it should be valid or competent. Whether an appeal is valid or competent is a question entirely for the appellate court before whom the appeal is filed to decide and this determination is possible only after the appeal is heard but there is nothing to prevent a party from filing an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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