Karan Ventakeshwara Associates v. Income-Tax Officer-Ito Ward 7(3),Pune And Ors

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1992 OF 2021 Karan Ventakeshwara Associates Vs. Income-Tax Officer-ITO Ward 7(3),Pune and Ors. ... Petitioner … Respondents Mr. Mihir Naniwadekar with Mr. Ruturaj Gurjar, Advocates for the Petitioner. Mr. Sham Walve, Advocate for the Respondents. ( THROUGH VIDEO CONFERENCING) P. C. 1. By this Petition filed under Article 226 of the Constitution of India, 1950, Petitioner challenges the order dated 17[th] April 2021,whereby Respondent No.2 has rejected Petitioner’s application underthe Direct Tax Vivad Se Vishwas Act, 2020 (the “DTVSV Act”) on theground that there is no appeal pending in the case of Petitioner. 2. It is the case of Petitioner that Assessment Order for AssessmentYear 2014-15 was passed under Section 144 read with Section 147 ofthe Income Tax Act, 1961 on 26[th] December 2019. Being aggrieved bythe said order, Petitioner had filed an appeal before the concerned Commissioner of Income Tax (Appeals) on 6[th] February 2020 and BY anapplication for condonation of delay on 20[th] February 2020. Thereafter,in view of the enactment of the DTVSV Act, Petitioner had made anapplication by way of a declaration in Form 1 and an undertaking inForm 2 to the designated authority on 18[th] December 2020 and arevised declaration and undertaking on 29[th] January 2021. It appearsthat there was protracted correspondence between Petitioner and thedepartment, which eventually resulted in the rejection of Petitioner’sapplication by order dated 17[th] April 2021 as per department’s affidavitdated 23[rd] June 2021 on the ground that the deemed condonation ofdelay was granted on 25[th] December 2020, but the declaration underDTVSV Act was filed on 18[th] December 2020. The department isthereby urging that in view of this, Petitioner is not qualified as itscondonation of delay was not granted on the date of making theapplication under the DTVSV Act. 3. The only issue that therefore that needs to be addressed iswhether Petitioner is an eligible appellant under the provisions of theDTVSV Act. In this context, it would therefore, be apposite to set forthSection of the DTVSV Act, as under :- “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 orby the income-tax authority or by both, before anappellate forum and such appeal or petition is pendingas on the specified date; (ii) a person in whose case an order has been passed bythe Assessing Officer, or an order has been passed by theCommissioner (Appeals) or the (iii) a person who has filed his objections before theDispute Resolution Panel under section 144C of theIncome-tax Act, 1961 and the Dispute ResolutionPanelhas not issued any direction on or before the specifieddate; (iv) a person in whose case the Dispute Resolution Panelhas issueddirection under sub-section (5) of section144C of the Income-tax Act and the Assessing Officerhas not passed any order under sub-section (13) of thatsection on or before the specified date; (v) a person who has filed an application for revisionunder section 264 of the Income-tax Act and suchapplication is pending as on the specified date.” 4. The issue at hand revolves around Section 2(1)(a)(i) as quoted above i.e., if the appeal before the appellate forum, CIT(A) in this case, is pending before the specified date i.e. 31[st] January 2020, then theapplicant would be an eligible appellant. Therefore, the moot questionto be answered is whether the delay in filing of the appeal by Petitionerwas condoned or not. 5. After hearing learned counsel for the parties and with their ableassistance, having perused the pleadings in the matter, the undisputedfacts that emerge are that Assessment Order being passed on 26[th] (v) a person who has filed an application for revisionunder section 264 of the Income-tax Act and suchapplication is pending as on the specified date.” 4. The issue at hand revolves around Section 2(1)(a)(i) as quoted above i.e., if the appeal before the appellate forum, CIT(A) in this case, is pending before the specified date i.e. 31[st] January 2020, then theapplicant would be an eligible appellant. Therefore, the moot questionto be answered is whether the delay in filing of the appeal by Petitionerwas condoned or not. 5. After hearing learned counsel for the parties and with their ableassistance, having perused the pleadings in the matter, the undisputedfacts that emerge are that Assessment Order being passed on 26[th] December 2019, the demand was raised before the specified date i.e.,31[st] January 2020. Petitioner had filed appeal before Commissioner ofIncome Tax (A) on 6[th] February 2020 and the condonation of delayapplication was filed on 20[th] February 2020. The condonation delay asper the affidavit of the department came on 25[th] December 2020. 6. In view of the department’s own stand that the delay in filing theappeal before the CIT(A) has been condoned, there is nothing left forus to say further. It is a matter of first principles that the order ofcondonation of delay relates to the appeal and once delay has beencondoned in the filing of appeal that means in this particular caseappeal has been filed in time i.e. before the specified date i.e. 31[st]January 2020 as required under the DTVSV Act thereby makingPetitioner an eligible appellant to avail the benefit of the DTVSVScheme. Moreover, the department has in its affidavit in reply clearlystated that the Petitioner is an eligible appellant under the DTVSV Actand that Petitioner also does not fall within the disqualification inSection 9 of the DTVSV Act. 7. In this view of the matter, Petition is allowed in terms of prayerclause (b), which reads thus:clause (b), which reads thus: “ b. That the Hon’ble Court may be pleased to issue under Article 226 of the Constitution of India appropriatewrit or order or direction including a writ in the nature of‘Mandamus’ directing the Respondent No. 2 to forthwithcancel the rejection of the Petitioner’s application and tofurther direct the Respondent to verify and accept thedeclaration filed by the Petitioner on 29.01.2021 in Form 1& 2 under DTVSV Act and issue Form No. 3 determiningthe amount payable by the Petitioner as per the provisionsof Section 3 of DTVSV Act” 8. Petition is accordingly disposed of. No costs. ( ABHAY AHUJA, J. ) ( SUNIL P. DESHMUKH, J. )