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TMI Blog2008 (3) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... have it disposed off under the Kar Vivad Samadhan scheme and for a further direction to the respondent to issue final certificate to the appellant under the said scheme. 2. The learned single Judge, after referring to Section 95 of Finance (No.2) Act, 1998 has ultimately held that it is true that the word 'pending' would mean 'undecided issues' and a legal proceedings deemed to have been pending as soon as it is commenced and until it is concluded, but nevertheless the commencement of the legal proceedings would not mean the mere presenting of papers to the Registry. Even though the papers were presented on 28-12-1998, the papers were returned from the Registry for certain compliance on 13-1-1999. Again the papers were represented after c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows : "10. The basic point which we are required to consider in this case is the meaning of the word 'pending' in Section 95(i)(c) of the said scheme. 11. The object of the Scheme was to make an offer by the Government to settle tax arrears locked in litigation at a substantial discount. It provided that any tax arrears could be settled by declaring them and paying the prescribed amount of tax arrears, and it offered benefits and immunities from penalty and prosecution. In several matters, the Government found that a large number of cases were pending at the recovery stage and, therefore, the Government came out with the said Scheme under which it was able to unlock the frozen assets and recover the tax arrears. 12. In our view, the Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayable under the IT Act/Wealth Tax Act in respect of an assessment year but which remained unpaid as on the date of making of the declaration from which TDS, self-assessed tax, advance tax paid, if any, had to be deducted under Section 90; the DA had to determine the amount payable and for that purpose, he had to determine the tax arrear as well as the disputed amount as defined under Section 87(f). Thus, the DA had to make an assessment of tax arrears, disputed amount and amount payable for each year of assessment; that the appeal was barred against the order under Section 90 (see Section 92); that such determination had to be done within 60 days from the receipt of the declaration and based thereon the DA had to issue a certificate. In ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by limitation. From the mere fact that such an appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the court. 16. To the same effect is the law laid down by the judgment of this court in Tirupati Balaji Developers (P) Ltd. v. State of Bihar, (2004) 5 SCC 1, in which it has been held that an appeal does not cease to be an appeal though irregular and incompetent." 7. In the case of Swan Mills Ltd. v. Union of India, 2007 (214) E.L.T. 322 (S.C.) = (2007) 7 S.C.C. 29 the very provision in respect of indirect tax has been considered by the Supreme Court with which we are concerned in this case. After extracting the paragraphs 10 to 16 in Shatrusailya's case, which has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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