IMPORTANT POINT
The court ruled that a review petition qualifies as a pending appeal under the Direct Tax Vivad Se Vishwas Act, allowing the petitioner to seek benefits under the Act.

JUDGMENT :

RAVINDER DUDEJA, J.

1. The present Writ Petition has been filed by the writ petitioner- assessee, challenging the order dated 28.01.2021, passed by respondent No. 1, dismissing the revised application filed by the petitioner on the internet portal of respondent No. 1 seeking to avail the benefit of Direct Tax Vivad Se Vishwas Act, 2020 [“DTVSV Act”] for the Assessment Year [“AY”] 2009-10.

2. As per the facts succinctly captured in our order dated 19.03.2021, Petitioner-assessee fought the Revenue upto the Supreme Court in respect of the assessment made qua AY 2009-10. He had succeeded before the Commissioner of Income Tax (Appeals) [“CIT(A)”]. The Income Tax Appellate Tribunal [“ITAT”] vide judgment dated 16.10.2017 upheld the order of CIT(A).

3. The order of the Tribunal was upheld by this Court vide judgment rendered on 26.02.2018. However, the Special Leave Petition against the High Court order was allowed by the Supreme Court vide order dated 05.03.2019. The application preferred by the petitioner for recall of the said order was also rejected by the Supreme Court vide order dated 25.10.2019.

4. It is thereafter that petitioner-assessee preferred a review petition. The review petition was filed on 18.11.2019, which was dismissed in limine on 04.02.2020 i.e. after the specified date, which is 31.01.2020.

5. The DTVSV Act was notified by the Government of India on 18.03.2020. Consequently, on 26.12.2020, petitioner, in order to avail the amnesty scheme of the Government of India, filed a declaration/application under the DTVSV Act on the e-portal of respondent No. 1, but his application was rejected by respondent No. 1.

6. Petitioner filed a revised declaration/application under the DTVSV Act on 28.01.2021, but the same was also rejected vide the impugned order stating that “no appeal of the Department was pending in the Hon’ble Supreme Court on the specified date. It was decided much before that date. The review petition is not liable to be treated as an appeal under DTVSV Act. Moreover, review petition was filed by the assessee and not Department as claimed.

7. Mr. Sibal, learned counsel for the petitioner has submitted that respondent has failed to appreciate not only the legislative intent and purpose of DTVSV Act but also the scope and ambit of a review petition being an extension of the appeal. It is submitted that review is statutorily different from an appeal and the jurisdiction of the Court includes the power to modify, review or recall its own order. It has been submitted that an Order-in-Appeal or in the SLP does not attain finality if the review petition is pending. As such, an Order-in-Appeal can always be reviewed and a different conclusion reached on the basis of the review.

8. It has been further argued that the petitioner was within his right to file a review against the order passed in the SLP, if the grounds mentioned under Order XLVII Rule 1 CPC are satisfied. Learned counsel has further submitted that as per the principles of purposive construction and the object of DTVSV Act, review petition should also be included within the definition of a pending appeal and under the definition of “appellant” under Section 2(1)(a)(i) and the petitioner should be held eligible to apply and avail benefits under the DTVSV Act. It has also been submitted that DTVSV Act came into force on 18.03.2020, while the review petition was filed on 18.11.2019 by the petitioner, and therefore, the present review application cannot, in any manner, be taken to be a colourable device on the part of the petitioner to avail the benefit of the scheme. It is stated that the review petition filed by the petitioner was bona fide and was pending as on 31.01.2020 i.e. the specified date under the DTVSV Act. The review petition being an extension of the appeal, the impugned order cannot be sustained, being contrary to the objective of DTVSV Act.

9. Per contra, learned counsel for the respondent has argued that no Appeal, Writ Petition or Spec