Late Smt. Mamta Choudhary, Through Her Legal Heir Shrisanjeev Kumar Choudhary Resident Of Gram Hetamsar, Districtjhunjhunu In The State Of Rajasthan v. Principal Commissioner Of Income Tax, Jaipur

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 5366/2021 Late Smt. Mamta Choudhary, Through Her Legal Heir ShriSanjeev Kumar Choudhary Resident Of Gram Hetamsar, DistrictJhunjhunu In The State Of Rajasthan ----Petitioner Versus 1. Principal Commissioner Of Income Tax, Jaipur-2, JaipurHaving Its Office At New Central Revenue Building, StatueCircle, Bhagwan Das Road, C-Scheme, Jaipur. 2. Central Board Of Direct Taxes, New Delhi Having Its OfficeAt North Block, Central Secretariat, New Delhi-110001Through Its Chairman. ----Respondents For Petitioner(s) : Mr. Siddharth Ranka For Respondent(s): Mr. Amit Malani on behalf of Mr. R.B. Mathur (Sr. Adv.) HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE SUDESH BANSAL Order 22/02/2022 1.The petitioner has challenged the decision of the respondentNo.1-Principal Commissioner of Income Tax, Jaipur-2 rejecting thepetitioner's application for settlement of a case under the DirectTax Vivad Se Vishwas Act, 2020 (hereinafter to be referred as'VSVS Act'). Brief facts are as under:- 2.The petitioner is husband of deceased Mamta Choudhary. For the assessment year 2009-10 late Smt. Mamta Choudhary hadfiled return of income which was taken in reassessment. An orderunder Section 144 read with Section 147 of the Income Tax Act,1961 (for short 'the Act') was passed after issuing notice underSection 148 of the Act on 25.02.2014 assessing total income at Rs.51,40,000/-. Penalty proceedings under Sections 271B, 271(1)(c) and 271F of the Act were initiated. Case of the petitioner isthat his wife was suffering from cancer. She therefore could notparticipate in the assessment proceedings. Assessment order waspassed ex-parte. She expired on 25.09.2015. 3.Neither during her lifetime nor after her death any appeal forand on behalf of the assessee was filed against the said order ofassessment. On 03.02.2020 the settlement scheme under theVSVS Act was introduced. As per this scheme with respect to apending case assessees were given moratorium if application forsettlement was filed before the appropriate authority andaccepted. On 04.03.2020 the petitioner filed an appeal as a legalheir of deceased Mamta Choudhary against the order ofassessment dated 25.02.2014. He also filed an application forcondonation of delay. 4.The Central Board of Direct Taxes (for short 'the CBDT')issued a circular on 04.12.2020 issuing certain clarifications withrespect to frequently asked questions in relation to the saidscheme. We are concerned with question No.59 contained in thesaid circular. The question and the clarification issued by the CBDTread as under:- Q.No.59. Whether the taxpayer in whose case the timelimit for filing of appeal has expired before 31stJan 2020 but an application for condonation ofdelay has been filed is eligible?limit for filing of appeal has expired before 31stJan 2020 but an application for condonation ofdelay has been filed is eligible? Answer:If the time limit for filing appeal expired during theperiod from 1stApril 2019 to 31stJan, 2020 (bothdates included in the period), and the application forcondonation is filed before the date of issue of thiscircular, and appeal is admitted by the appellateauthority before the date of filing of the declaration,such appeal will be deemed to be pending as on 31stJan 2020.period from 1stApril 2019 to 31stJan, 2020 (bothdates included in the period), and the application forcondonation is filed before the date of issue of thiscircular, and appeal is admitted by the appellateauthority before the date of filing of the declaration,such appeal will be deemed to be pending as on 31stJan 2020. Answer:If the time limit for filing appeal expired during theperiod from 1stApril 2019 to 31stJan, 2020 (bothdates included in the period), and the application forcondonation is filed before the date of issue of thiscircular, and appeal is admitted by the appellateauthority before the date of filing of the declaration,such appeal will be deemed to be pending as on 31stJan 2020.period from 1stApril 2019 to 31stJan, 2020 (bothdates included in the period), and the application forcondonation is filed before the date of issue of thiscircular, and appeal is admitted by the appellateauthority before the date of filing of the declaration,such appeal will be deemed to be pending as on 31stJan 2020. 5.This clarification thus concerns the aspect as to when in acase the time limit for filing appeal has expired before 31.01.2020but an application for condonation for delay has been filed,whether the same would be treated as a pending case. Theclarification issued by the CBDT provides that if time limit for filingappeal expired during the period from 01.04.2019 to 31.01.2020and the application for condonation is filed before the date of issueof the circular and the appeal has been admitted by the appellateauthority before the date of filing of the declaration, such appealwill be deemed to be pending as on 31.01.2020. For application ofthis clarification thus first condition was that the time limit forfiling appeal has expired during the period from 01.04.2019 to31.01.2020. 6.The case of the petitioner is that this condition is directoryand not mandatory and must be seen in the background of theappeal filed by the petitioner along with the application forcondonation of delay. If the delay is condoned, the institution ofappeal should relate back to the original period of limitation afterpassing of the order of assessment and looked from such angle,the appeal should be treated as pending in terms of theclarification issued by the CBDT in the said circular. In this contextlearned counsel for the petitioner strenuously urged that thepetitioner's application for condonation of delay has not yet beendisposed of. In view of the introduction of faceless assessmentprocedure the petitioner is not aware before which AppellateCommissioner his appeal and application for delay condonation arepending. 7.On the other hand counsel for the department submitted thatpetitioner does not fulfill the very first condition contained in the clarification of the CBDT. The period of limitation for filing appealhad expired long before the settlement scheme was introduced.The petitioner cannot revive a dead cause by filing a belatedappeal with application for condonation of delay. 7.On the other hand counsel for the department submitted thatpetitioner does not fulfill the very first condition contained in the clarification of the CBDT. The period of limitation for filing appealhad expired long before the settlement scheme was introduced.The petitioner cannot revive a dead cause by filing a belatedappeal with application for condonation of delay. 8.Having heard learned counsel for the parties and havingperused the documents on record we find that admittedly theorder of assessment was served on the assessee on or around25.02.2014. Till 04.03.2020 i.e. six years after the order ofassessment was communicated, no appeal was filed challengingthe assessment. The appeal was filed only on 04.03.2020 i.e. justover a month after introduction of the settlement scheme underthe VSVS Act. In the application for condonation of delay also it isprimarily stated that petitioner was not aware about the passing ofthe order of assessment. He came to know only when departmentraised recovery of outstanding demand. He also stated thatpetitioner wants to take benefit of scheme under the VSVS Actand therefore the delay should be condoned. In this applicationthe petitioner has not stated when did the department servenotice of recovery upon which he came to know about the order ofassessment being passed. Even this general assertion of not beingaware of assessment earlier does not seem quite correct since wefind that at Page 148 of the paper book there is a copy of theletter written by the petitioner to the Income Tax Officer on oraround 20.03.2015 conveying that he was unable to attend therectification proceedings and that the date may be postponed. 9.We do not think that the benefit of the scheme under theVSVS Act is meant to be given to the assessees without anyreference point. In other words an assessee cannot revive an olddead cause and contend that now that I have filed an appeal along with application for condonation of delay, my right to apply forsettlement under the scheme exists. This is precisely why theCBDT in its clarification in question has provided that time limit forfiling appeal should have expired during the period from01.04.2019 to 31.01.2020. This ensures that the cases in whichlimitation for filing appeal has expired long before could bescreened out. Removal of this requirement would open flood gatesand enable the assessees without any limit to revive a causewhich may have been abandoned. This can never be the intentionof the scheme. The terms of the scheme cannot be expanded inthis manner. 10.In the result we do not find any merit in the petition and thesame is dismissed. (SUDESH BANSAL),JKAMLESH KUMAR/S-67 (AKIL KURESHI),CJ