The court established that an appeal restored after the specified date can still be considered pending for the purposes of eligibility under the VSV Act.

ORDER :

(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)

1. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs.

“(a) direct the Respondent to accept the declaration filed by the Petitioner under the Vivad se vishwas scheme for the Assessment Year 2010-11;

(b) pending the admission, hearing and final disposal of this petition, direct the Respondent to accept the declaration filed by the Petitioner under the Vivad se vishwas scheme for the Assessment Year 2010-11;”

2. Return of income for A.Y. 2010-11 filed by the petitioner was taken up for scrutiny and assessment order dated 28th March, 2013 was passed under Section 143(3) of the Income Tax Act, 1961 (for short ‘the Act’) assessing the total income at Rs.58,17,604/- as against returned income of Rs.06,15,330/-.

2.1 Being aggrieved, the petitioner preferred appeal before CIT (A), which was dismissed by order dated 10th February, 2015.

2.2 The petitioner, therefore, preferred ITA No.1327/Ahd/2015 before the Income Tax Appellate Tribunal (for short ‘the Tribunal’), which was also dismissed in limine by order dated 26th March, 2019 as no one appeared on behalf of the petitioner nor an adjournment application was filed seeking any time.

2.3 The petitioner thereafter filed Miscellaneous Application before the Tribunal on 21st February, 2020 under Section 254(2) of the Act to recall the dismissal order dated 26th March, 2019.

2.4 On 17th March, 2020 Direct Tax Vivad Se Vishwas Act, 2020 (for short ‘VSV Act’) was enacted with the objective of reducing pending income tax litigation.

2.5 The Tribunal allowed the Miscellaneous Application No.75/And/2020 in ITA No.1327/Ahd/2015 by order dated 03rd September, 2020 recalling dismissal order dated 26th March, 2019 by restoring the Tax Appeal on file.

2.6 The petitioner thereafter preferred application under the VSV Act on 11th November, 2020 on the ground that in view of order dated 03rd September, 2020 passed by the Tribunal the appeal preferred by the petitioner became alive as on 31st January, 2020 which was the cut-off date prescribed under the VSV Act for being eligible to prefer an application by the assessee.

2.7 The petitioner thereafter filed revised declaration in VSV Act on 23rd January, 2021 in the prescribed Forms 1 and 2 for settling the appeal being ITA No.1327/And/2015 pending before the Tribunal.

2.8 However, the application of the petitioner was not accepted and reason for rejection of the application was communicated on portal which reads as under.

“Assessee had filed Form-1&2 on 11/11/2020 and the same was rejected as no appeal was pending as on 31/01/2020. Again assessee filed revised Form- 1 on 23/01/2021 by filling schedule-IV i.e. appeal pending before ITAT stating that the order of the ITAT dated 26/03/2019 was recalled by the ITAT on 03/09/2020 against the M/A filed by the assessee and accordingly his appeal was revived and pending before ITAT as on 31/01/2020. Order of ITAT was passed on 26/03/2019. The date on which order was received by the assessee has not been mentioned. It is not clear whether time to file appeal before High Court or time to file MA was available as on 31/01/2020. But the assessee filed M.A. on 21/02/2020 which was entertained and allowed by ITAT. FAQ has no such instance which exactly apply to the case. In order to ensure the decision taken in accordance with the spirit of the scheme, a reference was made to CCIT-1, seeking the advice of the CBDT on the Issue and CCIT-1 has directed to reject the VsVs”

3. Being aggrieved, the petitioner has preferred the present petition.

4. Learned senior advocate Mr.Tushar Hemani with learned advocate Ms.Vaibhavi Parikh for the petitioner submitted that in view of recall order dated 03rd September, 2020 the appeal preferred by the petitioner in the year 2015 before the Tribunal was restored to its file and accordingly, as per the Scheme of the VSV Act, appeal preferred by the petitioner was to be treated as