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TMI Blog2024 (11) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... imbhai Abdulgaffar Shaikh [ 2003 (9) TMI 777 - SUPREME COURT] held that broadly speaking, an appeal is a proceeding taken to rectify an erroneous decision of a court by submitting the question to a higher court. Similarly, in James Joseph v. State of Kerala [ 2010 (8) TMI 959 - SUPREME COURT] the Hon'ble Supreme Court while giving its ruling in the context of Kerala Forest Act, 1961, observed that the word appeal is not defined either under the Kerala Forest Act, 1961 or under CPC. Hon ble Supreme Court further held that an appeal is a proceeding where an higher forum reconsiders the decision of a lower forum, on questions of fact and questions of law, with jurisdiction to confirm, reverse, modify the decision or remand the matter to the lower forum for fresh decision in terms of its directions. The expression appeal is defined in the Oxford Dictionary, Vol. 1, p. 398, as the transference of a case from an inferior to a higher court or tribunal in the hope of reversing or modifying the decision of the former. In the Law Dictionary by Sweet, the term appeal is defined as a proceeding taken to rectify an erroneous decision of a court by submitting the question to a higher court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Mr. R. Sivaraman For the Respondents : Mrs. Premalatha Junior Standing Counsel. COMMON ORDER In these writ petitions, the petitioner has challenged the impugned rejection order dated 03.02.2021 of the second respondent who officiated as the designated Authority under the provisions of Direct Taxes Vivad Se Vishwas Act, 2020. 2. The petitioner had suffered assessment orders dated 16.03.1998, 25.03.1999 and 31.03.1999 for the assessment years 1995-1996, 1996-97, 1997-98 respectively. The petitioner was also imposed with interest under Section 234A, 234B and 234C of the Income Tax Act, 1961. 3. During the interregnum, the petitioner was also proceeded to wind up its affairs under the provisions of the Companies Act 1956. In fact, the company was also ordered to be wound up by the Court which was later set aside, details of which is captured in W.P.No.12500 of 2010 passed by this Court. 4. After paying the disputed tax, the petitioner approached the fourth respondent for waiver of interest imposed under Section 234A, 234B and 234 C of the Income Tax Act, 1961 in terms of Circular No.400/29/2002-IT(B) dated 26.06.2006. The fourth respondent herein (first respondent in W.P.No.12500 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder was passed on 20.11.2020 directing the assessee to pay these demand within 15 years as per court orders. 6. The impugned order/communication dated 03.02.2021 which rejects the declaration filed by the petitioner under the provisions of the Direct Tax Vivad Se Vishwas Act, 2020 is primarily challenged on the ground that it is contrary to the provisions of the said Act. 7. In this connection, the learned counsel for the petitioner drawn attention to the decision of the Division bench of the Bombay High Court and that of the Delhi High Court in the following two cases:- i) Mrs.Premalatha Mohan Agarwal vs. Principal Commissioner of Income Tax, Pune, (2022) 134 taxmann.com19 ( Bombay); (ii) Kapri International (P.) Ltd. vs. Commissioner of Income Tax -IV , (2022) 144 taxmann.com37 (Delhi) 8. On the other hand, the learned counsel for the respondent would submit that the petitioner has filed waiver application before the competent authority which was pending on the specified date as defined in Section 2(1)(n) of the said Act on 30.01.2020, the petitioner was not entitled to file an application for settling the dispute under Section 3 of the aforesaid scheme . 9. The learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Direct Tax Vivad Se Vishwas Act, it is provided that where a declarant files under the provisions of this Act a declaration to the designated authority in accordance with the provisions of section 4 in respect of tax arrear, then notwithstanding anything contained in the Income-tax Act or any other law for the time being in force, the amount payable by the declarant under this Act, where tax arrear relates to disputed interest amount payable under the Act, on or before March 31, 2020 will be 25 per cent. of disputed interest and if paid after April 1, 2020 but before the last date, 30 per cent. of disputed interest. The tax arrear is defined under section 2(1)(o) to mean .. . disputed interest. . . . The disputed interest is defined under clause (h)(ii) of sub-section (1) of section 2 to mean the interest determined in any case under the provisions of the Income-tax Act, 1961 where an appeal has been filed by the appellant in respect of such interest . Appellant means under clause (a)(i) of sub-section (1) of section 2 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of all nature of disputes relating to tax, penalty, interest, fee as determined under provisions of the Vivad Se Vishwas Act. The restrictive scope that the Commissioner of Income-tax is providing for definition of dispute or even of an appeal is not in synchronicity with the letter and spirit of the Vivad Se Vishwas Act, that propounds an ameliorative scheme for resolution. Thirdly, section 2(1)(o) which defines tax arrears includes distinct categories which are in the alternative and not cumulative, viz., disputed tax, disputed interest, disputed fee, disputed penalty. Therefore, for the Commissioner of Income-tax to contend that section 2(1)(h) relates to a disputed interest on a disputed tax only and therefore the petitioner was non- suited since there was no disputed tax but only disputed interest, is not tenable. Provisions have to read purposively and in harmony with the scheme of the Vivad Se Vishwas Act, and its intent. It is a well settled principle of law that a statute should be given a purposive construction in order to give effect to its legislative purpose. This, not being a taxing statute but one which propounds a dispute resolution scheme for tax disputes would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to appeals filed by taxpayers or the Government, which are pending with the Commissioner (Appeals), Income-tax Appellate Tribunal, High Court or Supreme Court as on the 31st day of January, 2020 irrespective of whether demand in such cases is pending or has been paid ; (b) the pending appeal may be against disputed tax, interest or penalty in relation to an assessment or reassessment order or against disputed interest, disputed fees where there is no disputed tax. Further, the appeal may also be against the tax determined on defaults in respect of tax deducted at source or tax collected at source. 16.Reliance by the Commissioner of Income-tax on FAQ-13 is not tenable since as rightly argued by the learned counsel for the petitioner FAQ-13 relates to a pending waiver application before the Department and not a proceeding emanating out of a decision by the Department on a waiver application, which Company Application 577 of 2019 was. This is also obvious since if the Department itself is seized of a demand by the assessee and has not passed a decision on it, then there is no dispute as yet which has fructified. It may be noted that the definition of dispute under the Vivad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecified date, the amount of tax that is payable by the appellant if such appeal or writ petition or special leave petition was to be decided against him; (B) in a case where an order in an appeal or in writ petition has been passed by the appellate forum on or before the specified date, and the time for filing appeal or special leave petition against such order has not expired as on that date, the amount of tax payable by the appellant after giving effect to the order so passed; (C) in a case where the order has been passed by the Assessing Officer on or before the specified date, and the time for filing appeal against such order has not expired as on that date, the amount of tax payable by the appellant in accordance with such order; (D) in a case where objection filed by the appellant is pending before the Dispute Resolution Panel under section 144C of the Income-tax Act as on the specified date, the amount of tax payable by the appellant if the Dispute Resolution Panel was to confirm the variation proposed in the draft order; (E) in a case where Dispute Resolution Panel has issued any direction under subsection (5) of section 144C of the Income-tax Act and the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 19. In this case, the petitioner had filed W.P.No.12500 of 2010. The said Writ Petition was pending before this Court on the specified date as defined in Section 2(1)(n) of the Direct Tax Vivad Se Vishwas Act, 2020 on 31.01.2020 . 20. The expression disputed interest as defined in Section 2(1)(h) of the Direct Tax Vivad Se Vishwas Act, 2020 includes a situation where an appeal has been filed by the appellant in respect of such interest. 21. In this case, admittedly the petitioner has requested the Chief Commissioner of Income for waiver of interest in terms of Circular No. 400/29/2002-IT(B) dated 26.06.2006 which was denied vide order dated 16.03.2010. 22. Thus, the petitioner challenged the impugned order dated 16.03.2010 of the Chief Commissioner of Income in W.P.No.12500 of 2010 before this Court . W.P.No.12500 of 2010 was pending on the specified date as defined in Section 2(1)(n) of the Direct Tax Vivad Se Vishwas Scheme Act, 2020. 23. W.P.No.12500 of 2010 field by the petitioner came to be disposed on 10.02.2020. Thus, W.P.No.12500 of 2010 filed by the petitioner was disposed before the Direct Tax Vivad Se Vishwas Act, 2020 came to be passed by the Respective Houses of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt or Court of Appeal. Thus, under peculiar circumstances, a writ proceeding before a Writ Court may partake the character of an appeal in its revisional jurisdiction under Article 226 of the Indian Constitution. 30. Therefore, though the expression appeal has not been defined in Direct Tax Vivad Se Vishwas Act, 2020, it has to be construed that W.P.No.12500 of 2010 was in the nature of an appeal as the writ petitioner had questioned the order dated 16.03.2010 of the Chief Commissioner of Income Tax in the said writ petition as the petitioner had taken a stand that the petitioner was eligible for waiver of interest under Circular No. 400/29/2002-IT(B) dated 26.06.2006. 31. Therefore, the petitioner was eligible to settle the dispute under Vivad Se Vishwas Act, 2020. As stated elsewhere there is no embargo in Section 3 and Section 4 of the said Act for the petitioner to file a declaration. 32. Even otherwise, the answer to the Question No.13 of the FAQ is not relevant to facts of the present case. In any event, such clarifications are not binding on the Court. The definition of appellant under clause (a)(i) of sub-section (1) of Section 2 expressly includes, inter alia , filing of a ..... 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