Sukhdev Singh Vedwal v. Income Tax Officer And Another

IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL HON’BLE THE CHIEF JUSTICE MS. RITU BAHRI AND HON’BLE SRI JUSTICE RAKESH THAPLIYAL 19 FEBRUARY, 2024 Special Appeal No.160 OF 2022 Sukhdev Singh Vedwal …Appellant Versus Income Tax Officer and another. …Respondents JUDGMENT: (per Ms. Ritu Bahri, C.J.) The appellant has come up in this appeal against the judgment of the learned Single Judge dated 17.05.2022, whereby his application to consider his case under the Direct Taxes Vivad se Viswas Act, 2020 has been rejected. The Government of India vide its Gazette Notification dated 17.03.2020, has enacted an Act, namely, the Direct Taxes Vivad se Viswas Act, 2020. 2. The learned Single Judge has dismissed the Writ Petition by observing that, even if the assessment order was received by the petitioner on 10.07.2020, as per Annexure No.8, the very fact that he had made an application under the Vivad se Viswas Act, 2020 on 02.05.2020, then this date of 02.05.2020 has to be taken as to be the date of knowledge of the order, and in that eventuality, the appellant’s case would fall under Section 2(1)(a)(i) and not under Section 2(1)(a)(ii). Section 2 of the Vivad se Viswas Act, 2020, insofar as it is relevant, reads as under : “2. Definitions (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 or by the income-tax authority or by both, before an appellate forum and such appeal or petition is pending as on the specified date; (ii) a person in whose case an order has been passed by the Assessing Officer, or an order has been passed by the Commissioner (Appeals) or the Income Tax Appellate Tribunal in an appeal, or by the High Court in a writ petition, on or before the specified date, and the time for filing any appeal or special leave petition against such order by that person has not expired as on that date;” 3. Since no appeal was pending on 02.05.2020, his application has been rightly rejected. In the present case, as per Annexure no.8, page 30 of the paper-book dated 10.07.2020, the Income Tax Department have themselves, on an application made by the appellant, supplied him the certified copy of the order dated 09.12.2019. This letter is not in dispute between the parties. Once the certified copy was given on 10.07.2020, the appellant’s right to file an appeal arose on that date, as he could not have filed an appeal without the certified copy of the assessment order. Hence, for all intents and purposes the cause of action to file an appeal arose on 10.07.2020. Hence, after 10.07.2020, the appellant could have made an application under Act No.03 of 2020, and his case could not have been rejected on the ground that he had made an application on 02.05.2020 under the said Act. Even, if he had made an application to take the benefit of that scheme, the said application was not carrying the certified copy of the order, and hence, the application in itself was incomplete. On 02.05.2020, no appeal was pending, as the appellant did not have the certified copy of the order. 4. On the application made by the appellant on 02.05.2020, his application was rejected vide Annexure No.11, on the ground that no appeal was pending before any appellate forum. Hence, his application under Vivad se Viswas Act, was rejected. 5. In the present case, the certified copy of the order dated 09.12.2019 was given by the Income Tax Department on 10.07.2020 - Annexure No.8. The cause of action to file an appeal before the appellate authority arose on 10.07.2020. Since certified copy was given on 10.07.2020, the appellant has thirty days’ time to file an appeal. 6. Since the impugned order was already passed Annexure No.11, the appellant had no other option but to approach this Court. His only remedy was to approach this Court against the order dated 02.05.2020. 7. This petition itself be treated as an application 5. In the present case, the certified copy of the order dated 09.12.2019 was given by the Income Tax Department on 10.07.2020 - Annexure No.8. The cause of action to file an appeal before the appellate authority arose on 10.07.2020. Since certified copy was given on 10.07.2020, the appellant has thirty days’ time to file an appeal. 6. Since the impugned order was already passed Annexure No.11, the appellant had no other option but to approach this Court. His only remedy was to approach this Court against the order dated 02.05.2020. 7. This petition itself be treated as an application after the certified copy was filed by the appellant, and the appeal is being allowed giving directions to the respondent to consider the application dated 02.05.2020, keeping in view that the certified copy was given to the appellant on 10.07.2020, Annexure No.8, and his case falls under Section 2(1)(a)(ii). ______________ RITU BAHRI, C.J. ___________________ RAKESH THAPLIYAL, J.