Shree Coal Company v. Principal Commissioner Of Income Tax, Jaipur

D.B. Civil Writ Petition No. 5367/2021 Shree Coal Company, Having Its Registered Address At Plot No. -126,Shiv Vihar Colony, Road No. 5 Ke Samne, Vki Area, Jaipur Through ItsPartner Shri Sunil Luharuka. ----Petitioner Versus 1. Principal Commissioner Of Income Tax, Jaipur-2, Jaipur HavingIts Office At New Central Revenue Building, Statue Circle,Bhagwan Das Road, C-Scheme, Jaipur.Its Office At New Central Revenue Building, Statue Circle,Bhagwan Das Road, C-Scheme, Jaipur. 2. Central Board Of Direct Taxes, New Delhi Having Its Office AtNorth Block, Central Secretariat, New Delhi-110001 ThroughIts Chairman.North Block, Central Secretariat, New Delhi-110001 ThroughIts Chairman. ----Respondents For Petitioner(s) : Mr. Siddharth RankaFor Respondent(s): Mr. Sandeep PathakMs. Jaya P. Pathak HON'BLE MR. JUSTICE AVNEESH JHINGAN HON'BLE MR. JUSTICE ASHUTOSH KUMAR Order 01/07/2024 -AVNEESH JHINGAN, J (ORAL): 1.This petition is filed seeking quashing of order dated 31.03.2021rejecting the application of the petitioner filed under the Direct TaxVivad Se Vishwas Scheme, 2020 (for short ‘the Scheme’). 2.The brief facts are that the petitioner filed return for the Assessment Year 2011-12. The proceedings initiated under Section147/148 of the Income Tax Act, 1961 (for short ‘the Act’) culminated inan ex-parte order dated 23.11.2018. There is a dispute with regard tothe date of service of the re-assessment order. 3.As per the case set up by the petitioner, on gaining knowledge ofthe ex-parte order, the certified copy of order was obtained and appealfiled before the Commissioner of Income-Tax (Appeals) (for short‘CIT(A)’), on 07.01.2021 along with the application for condonation ofdelay. The appeal and the application are pending till date. Theimpugned order was passed on the ground that on the cut-off date ofthe Scheme i.e. 31.01.2020, no appeal of the petitioner was pendingand the case was not covered under the Scheme. 4.Learned counsel for the petitioner submits that the issue withregard to service of the assessment order is subject matter of appealbefore the CIT(A). The impugned order was passed without waiting forthe decision of the application/appeal and without going into the factumas to when the order was served and whether the period of limitationfor filing of an appeal had expired on 31.01.2020. The reliance is placedupon circulars dated 22.04.2020 and 04.12.2020 to submit that incases where the limitation to file appeal had not expired till 31.01.2020,such cases were covered under the Scheme. 5.Learned counsel for the respondent defends the impugned order.Submission is that no appeal was pending on the cut-off date. It isargued that in writ petition Court shall not modify the cut-off date of theScheme. It is contended that obtaining the certified copy of re-assessment order shall not extend the limitation for filing appeal. 6.There cannot be a quibble with the proposition that Court cannotmodify the cut-off date of the Scheme. The issue involved in the case inhand has to be seen from a different prospective i.e. date from whichthe limitation to file an appeal shall start. 7.From perusal of the impugned order, it is forthcoming that theonly ground of rejection of the application is that no appeal was pending on 31.03.2021. It is undisputed fact that appeal against the re-assessment order along with the application for condonation of delayfiled on 07.01.2021, is still pending. 8.While dealing with the application filed under the Scheme, theCommissioner had not considered the aspect of the date of service ofthe re-assessment order which has ramification on case of petitionerfalling within the ambit of the Scheme. Dealing with date of service ofre-assessment order would necessary for determining as to whetherVivad was pending on cut of date and case is covered under theScheme. 7.From perusal of the impugned order, it is forthcoming that theonly ground of rejection of the application is that no appeal was pending on 31.03.2021. It is undisputed fact that appeal against the re-assessment order along with the application for condonation of delayfiled on 07.01.2021, is still pending. 8.While dealing with the application filed under the Scheme, theCommissioner had not considered the aspect of the date of service ofthe re-assessment order which has ramification on case of petitionerfalling within the ambit of the Scheme. Dealing with date of service ofre-assessment order would necessary for determining as to whetherVivad was pending on cut of date and case is covered under theScheme. 9.Without commenting as to whether the petitioner was eligibleunder the Scheme, the petition is disposed of remitting the matter backto the authority concerned to decide the application filed under theScheme, afresh by passing a speaking order. 10.The Department, if so advised, may take steps for expeditiousdisposal of the application pending before the CIT(A) against the re-assessment order. Further, the petitioner shall also be at liberty to makea request to the Chief Commissioner of Income-Tax for expeditiousdisposal of the application for condonation of delay pending before theCIT(A). 11.The writ is accordingly disposed of. (ASHUTOSH KUMAR),J (AVNEESH JHINGAN),J Simple Kumawat/Riya/51 Whether Reportable :Yes