The main legal point established in the judgment is that once the delay in filing the appeal has been condoned, the appeal should be considered pending for the purpose of the Kar Vivad Samadhan Scheme.

( 1 ) BY means of the present writ petition filed under 1 article 226 of the Constitution of India, the petitioner, M/s. Janki Das Lachchmi Narain, seeks a writ, order or direction in the nature of certiorari quashing the order dated February 15, 1999, passed by the Commissioner of income-tax, Allahabad, respondent No. 1, filed as annexure 5 to the writ petition. The petitioner further seeks a writ, order or direction directing respondent No. 1 to entertain the application under the Kar Vivad Samadhan Scheme, 1998, filed on December 22, 1998, for the assessment year 1993-94 and issue necessary order under the aforesaid scheme and other consequential reliefs.

( 2 ) BRIEFLY stated, the facts giving rise to the present petition are as follows :

( 3 ) THE petitioner is a registered partnership firm and is engaged in the business of edible oil, etc. For the assessment year 1993-94, an assessment was framed by the Deputy Commissioner of income-tax, Special Range, Allahabad, vide order dated March 27, 1995. Feeling aggrieved by the said order, the petitioner had preferred an appeal before the Commissioner of Income-tax (Appeals), Allahabad, who vide order dated October 24, 1995, had rejected the appeal and had confirmed the assessment order. Still feeling aggrieved, the petitioner preferred a second appeal before the Income tax Appellate Tribunal, which was filed on January 31,1996. It is stated that along with the appeal, the petitioner has also filed an application for condonation of delay. In the meantime, by Chapter IV of the Finance (No. 2) Act of 1998 (hereinafter referred to as "the act"), the Central Government introduced the Kar Vivad Samadhan Scheme, 1998 (hereinafter referred to as "the Scheme" ). The scheme was made applicable to direct taxes as also indirect taxes mentioned therein. Under the scheme, settlement of taxes was provided for under certain circumstances. However, Section 95 provided that the scheme shall not apply in certain cases. Sub-clause (c) of Clause (i) of Section 95 of the Act provided that the scheme shall not apply in respect of tax arrear under any direct tax enactment in a case where no appeal or reference or writ petition is admitted and is pending before any appellate authority or the High Court or the supreme Court on the date of filing of declaration. The petitioner taking advantage of the scheme, filed an application in the prescribed form for settlement of tax payable. The application was filed on December 22,1998. The Commissioner of Income tax, Allahabad, respondent No. 1, however, vide order dated February 15, 1999, had rejected the application filed by the petitioner under the scheme. The order dated February 15, 1999, is under challenge in the present writ petition.

( 4 ) WE have heard Sri Rishi Raj Kapoor, learned counsel for the petitioner, and Sri Ashok kumar, learned standing counsel appearing for the respondents.

( 5 ) LEARNED counsel for the petitioner submitted that the order dated February 15,1999, passed by the Commissioner of Income-tax is wholly illegal and has been passed in utter disregard and in gross violation of the principles of equity, fair play and natural justice as neither any show cause notice nor any opportunity of hearing was given to the petitioner by the Commissioner of income-tax before passing the said order. He further submitted that under the scheme the only requirement was that the appeal should be pending at the time of making of the declaration. There is no procedure for admitting the appeal before the Tribunal and, therefore, as the petitioner had already filed the appeal before the Tribunal way back in January, 1996, along with an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal, the appeal would be treated to be pending and the view of the Commissioner of income-tax that no appeal was pending on the date of filing of the declaration is erroneous and contrary to law. In support of his afore