Shwetal Rittulbhai Vora v. Principal Commissioner Of Income Tax I ==========================================================

IN THE HIGH COURT OF GUJARAT AT AHMEDABADR/SPECIAL CIVIL APPLICATION NO. 10988 of 2021 ========================================================== SHWETAL RITTULBHAI VORA Versus PRINCIPAL COMMISSIONER OF INCOME TAX I ========================================================== Appearance:MR MONAAL J DAVAWALA(6514) for the Petitioner(s) No. 1MRS MAUNA M BHATT(174) for the Respondent(s) No. 1========================================================== CORAM: HONOURABLE MS. JUSTICE SONIA GOKANIand HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Date : 23/09/2021 ORAL ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1.The petitioner is an individual who has approached thisCourt by way of the present petition under Article 226 of theConstitution of India challenging the rejection of DeclarationForm 1 and 2 by the respondent on 12.04.2021 filed by thepetitioner under Direct Tax Vivad se Vishwas Act, 2020(hereinafter referred to as ‘the VSV Act’) read with the DirectTax Vivad se Vishwas Rules, 2020 (hereinafter referred to as‘the VsV Rules’). 2.The facts leading to the present petition are as follows: - 2.1.The return of income was filed by the petitioner declaring the income of Rs. 5,01,080/- on 29.09.2008 forAssessment Year 2008-09. The case of the petitioner wassubjected to scrutiny assessment and a notice under Section143(2) of the Income Tax Act, 1961 (hereinafter referred to as‘the Act’) was issued on 31.08.2009. The assessment orderunder Section 143(3) of the Act was passed by the AssessingOfficer on 25.03.2010 and the total income of the petitionerwas determined at Rs. 32,04,281/- after making variousadditions. 2.2.An appeal came to be preferred before the CIT(Appeals)which was partly allowed on 23.05.2012. The petitionerapproached Income Tax Appellate Tribunal (hereinafterreferred to as ITAT) vide ITA No. 1969/Ahd/2012 which wasalso partly allowed on 22.10.2019. 2.3. The certified copy of the order of the Tribunal was notserved upon the petitioner for nearly eleven (11) months, as aresult of which, the petitioner communicated to the AssistantRegistrar of the Tribunal on 30.09.2020 and requested for thedelivery of certified copy of the order to challenge the samebefore this Court. The copy eventually also received in themonth of December, 2020 and the period for preferringappeal against the order of ITAT being 120 days, the same was preferred within that period of 120 days. The FilingStamp Number Tax Appeal No. 24287 of 2020 is pending.With the onset of Covid-19 pandemic in March, 2020 thejudicial functioning of the Courts and Tribunals was extremelylimited and the period of limitation was extended from15.03.2020 and till the date of filing of this petition, the samehas been extended. The Apex Court in MiscellaneousApplication No. 665 of 2021 extended the same till 90 daysfrom 15.03.2021. 2.4.On 17.03.2020, the Central Government passed VsV Actto provide for the resolution of the disputed amount of taxesand for matters connected therewith and incidental thereto.The petitioner with a view to resolve the dispute, had filedDeclaration Form 1 and 2 as per Section 4 of the VsV Act andthe same was rejected on the ground that the assesseepreferred the appeal before the High Court on 30.10.2020vide Stamp No. 2487 of 2020 which is after the lapse of oneyear from the date of order of ITAT and therefore, accordingto the respondent, appeal was not pending before theappellate authority as on the specified date i.e. on 31.01.2020. 2.5.According to the petitioner, the appeal was to be filedbefore the High Court, however, the certified copy of the 2.4.On 17.03.2020, the Central Government passed VsV Actto provide for the resolution of the disputed amount of taxesand for matters connected therewith and incidental thereto.The petitioner with a view to resolve the dispute, had filedDeclaration Form 1 and 2 as per Section 4 of the VsV Act andthe same was rejected on the ground that the assesseepreferred the appeal before the High Court on 30.10.2020vide Stamp No. 2487 of 2020 which is after the lapse of oneyear from the date of order of ITAT and therefore, accordingto the respondent, appeal was not pending before theappellate authority as on the specified date i.e. on 31.01.2020. 2.5.According to the petitioner, the appeal was to be filedbefore the High Court, however, the certified copy of the order of the ITAT was not available till 22.10.2020. Section260(A)(2)(a) of the Act provides for 120 days of period oflimitation from the date of communication of the order, forpreferring the appeal. It is also the say of the petitioner thateven if the certified copy of the order passed by the ITAT wasavailable on 23.10.2019, the petitioner had time to approachthe High Court till 20.02.2020 and therefore, the time ofpreferring the appeal had not expired on 31.01.2020. 3.Therefore, the petitioner is before this Court with thefollowing prayers: - “(a)quash and set aside the impugned rejection atAnnexure-A to this petition; and/or (b)direct the respondent to accept theapplication of the petitioner; and/or (c)pending the admission, hearing and finaldisposal of this petition, to stay further proceedingsin the case of the petitioner; and/or (d)any other and further relief deemed just andproper be granted in the interest of justice; (e)to provide for the cost of this petition.” 4.Affidavit-in-reply, on issuance of notice, has been filedwhere the stand taken by the respondent is that the appealcame to be filed before this Court being F(Stamp) No. 24287of 2020 on 30.10.2020 after a period of one year from the dateof order which is passed on 22.10.2019 by the ITAT. Section 4(6)(b) of the VsV Act provides that the declaration filed shallbe presumed not to have been made if the declarant violetsany of the conditions referred in the Act. The petitioner wassince not found eligible to avail the benefit, his declarationform along with the application had been rejected. There is noflaw in the decision making process and therefore, it is urgedthat this petition be summarily rejected. 4.1.According to the respondent, the petitioner haspreferred appeal before this Court without filing CivilApplication for condonation of delay as can be seen from thescreen short and therefore, he has not satisfied the conditionprescribed under the Act. The chronological dates have beenreferred to at para-4 to urge that the petition deserves therejection on merit. 5.At the outset, the chronological dates and detailsfurnished by the respondent in its affidavit are necessary to bereferred to: - C/SCA/10988/2021 ORDER DATED: 23/09/2021 6.This Court has heard extensively the learned advocates on both the sides who have taken us through the variousprovisions of the VsV Act and VsV Rules as well as thepeculiar facts of the instant case considering extremeurgency, matter is taken up for final hearing at the stage ofadmission. 6.1.Apt would be to refer to Section 2 of the VsV Act at thisstage: - “2.(1) In this Act, unless the context otherwiserequires,— (a) "appellant" means— (i) a person in whose case an appeal or a writpetition or special leave petition has been filedeither by him or by the income-tax authority or byboth, before an appellate forum and such appeal orpetition is pending as on the specified date; 6.This Court has heard extensively the learned advocates on both the sides who have taken us through the variousprovisions of the VsV Act and VsV Rules as well as thepeculiar facts of the instant case considering extremeurgency, matter is taken up for final hearing at the stage ofadmission. 6.1.Apt would be to refer to Section 2 of the VsV Act at thisstage: - “2.(1) In this Act, unless the context otherwiserequires,— (a) "appellant" means— (i) a person in whose case an appeal or a writpetition or special leave petition has been filedeither by him or by the income-tax authority or byboth, before an appellate forum and such appeal orpetition is pending as on the specified date; (ii) a person in whose case an order has beenpassed by the Assessing Officer, or an order hasbeen passed by the Commissioner (Appeals) or theIncome Tax Appellate Tribunal in an appeal, or bythe High Court in a writ petition, on or before thespecified date, and the time for filing any appeal orspecial leave petition against such order by thatperson has not expired as on that date;” 6.2.Noticing from the chronology of the events that theappeal of the ITAT came to be decided on 22.10.2019,however, certified copy had been received in December, 2020,the period of limitation would start running from the date ofreceipt of certified copy as per Section 260(A)(2)(a) of the ITAct. Period of 120 days would not have been over on20.02.2020 when the appeal came to be preferred. 7.The case of the petitioner would squarely fall under thescheme of the VsV Act particularly under Section 2(1)(a)(ii)being the appellant whose time for filing appeal had notexpired on a specified date i.e. on 31.01.2020. Even withoutthe certified copy having been received, which indeed was ata belated stage, the period of limitation for preferring theappeal before this Court was not over when the authorityconcerned chose to reject the application of the respondent on12.04.2021. There appears to be total non-application of mindon the part of the respondent authority while rejecting the application and declaration form 1 and 2 without much effortand on simple comprehension of its own provision underSection 2(1)(a)(ii) of VsV Act read with Section 260(A)(2)(a) ofthe IT Act, it was easy to grasp that on the specified date on30.01.2020, the time for filing any appeal was still alive.Therefore, the petitioner would surely in the context of thisVsV Act can be said to be the appellant and therefore thispetition deserves to be allowed quashing and setting aside therejection of Form 1 and 2 on the part of the respondent dated12.04.2021. 8.Let the declaration of the petitioner be accepted by therespondent within three (3) days from the receipt of copy ofthis order and the petitioner shall follow the requirement ofpayment of tax as the last date is of 30.09.2021. Allconsequential actions shall follow in accordance with law onthe part of the respondent. 9.The petition is accordingly allowed. (SONIA GOKANI, J) (RAJENDRA M. SAREEN,J)