A revision application under Section 264 of the Income-tax Act, 1961 is non est if the application for condonation of delay is rejected, and therefore a declaration under the Kar Vivad Samadhan Scheme, 1998 cannot be considered in such a case.

( 1 ) AS agreed upon by both the parties the appeal be treated as on the day's list and after hearing counsel for both the parties both the appeal and the application stand disposed of by the following order.

( 2 ) BY this application it is prayed that the respondents be restrained from giving effect to the order of the Commissioner dated February 22, 1999, passed under Section 264 of the Income-tax Act, 1961. It is further prayed that application under Section 264 filed along with the application for condonation of delay be treated as pending until the Commissioner had disposed of the said application and the one for condonation of delay.

( 3 ) IN the year 1995 there was a search and seizure operation which was carried on by the Income-tax Department under Section 132 of the Income-tax Act, 1961 (hereinafter referred to as the 1961 Act ). During the course of the said search proceedings, the books of account of Rajda Polymers, a partnership firm of which the late Lilabati Rajda was a partner, were also seized.

( 4 ) IN respect of the assessment year 1990-91, an intimation under Section 143 (1) (a) of the 1961 Act was issued on October 9, 1992, by the Income-tax Officer, Ward 8 (2), wherein a sum of Rs. 2,80,925 was determined as payable, Thereafter a regular assessment order under Section 143 (3) of the 1961 Act was passed and served on the assessee on February 24, 1993. On January 29, 1999, a revisional application under Section 264 of the 1961 Act has been filed by the assessee before the Commissioner of Income-tax, Central-I. That application has been disposed of vide order dated February 22, 1999. On January 29, 1999, the assessee has also filed a declaration under the Kar Vivad Samadhan Scheme, 1998 (hereinafter referred to as the Scheme of 1998 ).

( 5 ) THE application of the appellant under Section 264 of the Act of 1961 had been rejected vide order dated February 22, 1999, on the ground of delay as the application under Section 264 has been filed after six years from the date of service of the assessment order.

( 6 ) HEARD learned counsel for the parties. Learned counsel for the appellant submits that as the application under Section 264 of the Act of 1961 was pending before the Commissioner of Income-tax as per provisions of Section 95 of the Scheme of 1998, the declaration should be considered under the scheme of 1998 on the merits. He placed reliance on the decision of the apex court in the case of Asgarali Nazarali Singaporewalla v. State of Bombay.

( 7 ) LEARNED counsel for the respondent submits that the issue has been considered by the Full Bench of this court in Mamuda Khateen v. Beniyan Bibi. In an appeal filed along with the application under Section 5 of the Limitation Act, in case the application under Section 5 of the Limitation Act is rejected, the appeal is non est. Therefore, there is no question of pendency of an appeal or revisional application unless the delay is condoned. He also drew our attention to the provisions of Section 264 of the Act of 1961, which provides that unless the revisional application is admitted, it cannot be said that the revisional application is pending.

( 8 ) SECTION 88 of the Scheme of 1998 provides that any person who makes the declaration to the designated authority on or before December 31, 1998, which has been extended by one more month, that is, till January 31, 1999, his declaration shall be considered for settlement of tax arrears in accordance with the provisions of the Scheme of 1998. The proviso to Section 95 of the Scheme of 1998 further provides that some cases are not covered under the Scheme, such as if no appeal or reference or writ petition is admitted or the revisional application before the Commissioner is admitted, the declaration under the Scheme of 1998 cannot be considered on the merits.

( 9 ) THE admitted facts are that the revisional application under Section 264 of the 1961 Act along with the condonation of delay has been filed after six yea

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