Mrs. Amina Khatoon V. The Union of India and 3 Others

WP/28250/2021

AI Insights

The case involves Mrs. Amina Khatoon, who sought to settle her tax disputes under the Direct Tax Vivad Se Vishwas Act, 2020. Initially, her application was rejected by the designated authority, leading her to file a writ petition under Article 226 of the Constitution of India. The primary contention was whether her appeal, which was filed after the specified date but included a condonation of delay, should be considered as pending for the purposes of the Act. The court examined the legislative intent behind the Vivad Se Vishwas Act and relevant circulars from the Central Board of Direct Taxes (CBDT), ultimately finding that the rejection of her application was not in accordance with the law.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 721615 (HC-TELANGANA)
• Appeal Type: Others
• Pronouncement Date: 06-01-2022
• Assessment Year: misc
• Other Referred Cases: Boddu Ramesh vs. Designated Authority
• Laws Referred To: Direct Tax Vivad Se Vishwas Act, 2020, Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: N RAO; K REDDY
• Assessee Lawyers: CH SARMA
• Keywords: Condonation of delay; Direct Tax Vivad Se Vishwas Act; Eligibility; Income Tax; Writ petition; Settlement of Tax Dues
• Section: 154; 151; 226

Judgement Text

"HrG H co uRrr3xl,tff 'fllfl3!ffi o* uoro rHyI:DjY, rHE srxrH DAY oF JANUARY Two THoUsAND AND rwrlrrv ri,io'., THE HONOURABLE SRI JUSTICE UJJAL BHUYAN THE HoNouRABLE sR, ,'#.,^.,=NKATESHWARA REDD' WRIT PETITIO N NO: 28250 0F 2021 Between: fvrs Amina Khatoon, wife of Sri Zurfi.Ravdjee. Aged 67 years, Residen t of B-2-494tso1 , Road No. 7 , Banjaru Hilts, Hyderabao _'sb6\"o\"C,i '\"\"\" \"' ...pETtTtoNER AND 1. The Union of lndia, Rep. by its Secretary, Ministry of Finance, New Delhi. 2. The_Designated Authority.under the Direct rax Vivad se Vishwas Acr,2020. olo the Principar chief comriissioner otGcomeiii, ii rowriii: ril;.;;iir.r.-\" \"'\" 3. The Commissioner of lncome Tax (Appeals)-6, lT Towers, AC Guards, Hyderabad. 4. The Assistant Commissioner of lncome Tax, Circle 14(1), Room No.635, 6th Floor, C Block, lT Towers, AC Guards, Hyderabad - SOOijOa. ...RESPONDENTS Petition Under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue any appropriate Writ, Order or direction, preferably a writ in the nature of Itlandamus declaring the impugned proceedings of the 2nd respondent herein dt. 2010412021 rejecting the petitioner's application dl. O3lO3l2O21 under the Direct Tax Vivad se Vishwas Act,2020 as being illegal, arbitrary, violative of Article 14 of the Constitution of lndia and also being contrary to the provisions of the said Act and clarifications issued by the CBDT and the order passed by the Honourable lncome Tax Appellate Tribunal, Hyderabad Bench-A dated 2310312021 in ITA No. 131lHydl2021 and consequently, set aside the same and direct the 2nd respondent to process the petitioner's application dt. 0310312021 under Direct Tax Vivad se Vishwas Act,2020 and issue Form lll under the said Act to enable the petitioner to settle the dispute and pass. Petition Under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation of the impugned proceedings of the 2nd respondent herein d|.2010412021, pending disposal of the above writ petition and pass. Counsel for the Petitioner : SRI,CH.SIDDHARTHA SARMA Counsel forthe Respondent No.1 : SRI N.RAJESHWARA RAO (ASST SOLTCTTOR GENERAL) Counsel for the Respondent Nos.2 to 4 : SRI K.RAJI REDDY The Court made the following ORDER PRESENT lA NO: 1 OF 2021 B URAB RIJ E UJJALBHUYAN LES USTIC THE HONO THE HoNO LE SRI JUSTICE A. VE TESHW REDDY QRDEB-: (Per Hon'ble Sri Justice Ujjal Bhuyan) Heard Mr. Ch. Siddhartha Sarma, leamed Counsel for the petitioner; Mr. B. Mukherjee, learned Counsel appearing on behalf of Mr. N. Rajeshwar Rao, learned Assistant Solicitor General of India, for l't respondent; and Mr. K. Raji Reddy, learned Senior Standing Counsel, Income Tax Department, for respondent nos.1 and 2' 2. By filing this petition under Arlicle 226 of the Constitution of India, petitioner seeks quashing of order dated 20.04.2021 passed by respondent no.2 rejecting the application of the petitioner dated 03.03.2021 for settlement of tax dues under the Direct Tax Vivad Se Vishwas Act,2020, and further seeks a direction to the 2nd respondent to consider the said application of the petitioner in terms of the aforesaid Act. 3. Case of the petitioner is that she is an assessee under the Income Tax Act, 1961 (briefly, 'the Act' hereinafter). 4. For the Assessment Year 2008-09, the Assessing Officer, i.e., respondent no.4, passed an Assessment Order which was rectified on 05.03 .20 19 under Section 1 54 of the Act. Against the Assessment AND Writ Petition No.28250 of 2021 wp_2E25A Order, as rectified, petitioner preferred an appeal before respondent no.3. However, by order dated 10.10.2019, the appeal was partlv allowed. Assailing that p,lrt of the order of the first ,pp.ltu,\" authority, i.e., respondent no.3, petitioner filed further appeal before the Income Tax Appelrate Tribunal at Hyderabad on 24.02.202r which was registered as I.T.A.No.13 lfilyd/2020. 5. In the meanwhile, Union of India enacted the Direct Tax Vivad Se Vishwas Act, 2020 (briefly, the ,Vivad Se Vishwas Act, hereinafter) providing for resolution of disputed tax and for matters connected therewith or incidental thereto. 6. Since there was delay of @al days in preferring the said appeal before the Income Tax Appellate Tribunal, an application for condonation of delay was filed. When the appeal along with the condonation petition was taken up by the Income Tax Appellate Tribunal, it was submitted on behalf of the petitioner that petitioner would like to avail the benefit of the Vivad Se Vishwas Act. In that view of the matter, Income Tax Appellate Tribunal by the order dated 23.03.2021 condoned the delay in filing the appeal whereafter, petitioner was granted liberty to withdraw the appeal to avail her remedy under the Vivad Se Vishwas Act. / 7. Petitioner filed declaration under the Vivacl Se Vishwas Act on 03.03.2021 before respondent no.2. However, by the order dt.20.04,2021, the declaration was rejected. ;:J;; wp-2E250-2021 a_ (r 8. 9. Aggrieved, present Writ Petition has been filed' Common counter-affidavit has been frled by respondent no'3 on behalf of all the respondents' Though contentions have been advanced disputing the eligibility ofthe petitioner for resolution oftax dispute under the Vivad Se Vishwas Act' however' respondents have supported the impugned decision of the respond ent to '2 on merit as well. It is stated that on the specified date' i'e'' on 30'01'2020 there was no appeal of the petitioner which was pending before the Income Tax Appellate Tribunal' lt is further stated that though the specified date was subsequently extended to 04 '12 '2020 even then also there was no appeal pending as on that date' Therefore' petitioner was not eligible to make the declaration' Accordingly' respondent no'2 had rightly rejected such declaration ofthe petitioner' 10. Leamed counsel for the petitioner has relied upon Circular No.21 of 2020 issued by the Central Board of Direct Taxes (C'B'D'T') on 04.12.2020, more particularly, to the answer given to Question No.59 and also to a co-ordinate Bench decision of this Court in Boddu Ramesh vs. Designated Authorityr to contend that rejection of the declaration of the petitioner on the ground that there was no appeal pending on the specified date is not coffect' According to iearned counsel for petitioner, when the delay in filing the appeal has been condoned by the lncome Tax Appellate Tribunal it can only '43? LT.R.32 t' wp_2825o_ mean that the appeal was filed within time, and as on the specified date it should be deemed to have been pending. 11. Mr. K. Raji Reddy, leamed counsel for the respondents, has extensively referred to the counter_affidavit filed by tJre respondents and supports the impugned order rejecting the decraration of the petitioner' He further submits that against the decision of this court in Boddu Ramesh (1 supra), Income Tax Department has prefened special Leave to Appeal petition before the Supreme court. However, he fairly subrnits that there is no stay order granted in the Special Leave Petition 12, Submissions made by leamed counsel for the parlies have received the due consideration of the Coirrt. 13. At the outset, we may advert to the reason for rejection of the declaration of the petitioner by respondent no.2 vide the order dated 20.04.2021 . The same reads as under : \"Application in Form 1 & 2 filed on 03.O3.2O21 claiming appeals pending before tlrc ITAT toward.s disputed interest. The said appeals u_tere filed. on 24.02.2021 against the order of the CIT(A) d.ated 10.10.2019, As no appeal is pending as on specified, date, i,e., 31.03.2020 and also as time to file appeal is expired, the assessee is not eligibte and has to be treated as not a ualid declarant as per DTVSV Act, 2020. Furlher it is noted that uhile the dispute in Form 1 & 2 is disputed interest, whereas as per the grounds of appeal filed before tlle CIT(A) and also ITAT (filed. , ?i UB,J & AVR,J wp-28250-2021 . afier spectfied date) the dispute is on the Erantum of addition and not on interest portion' Also' in this case' the ground's raised before CIT(A) haue been alloued in fauour of assessee and no ground anses for appeal' This application is an @ttempt to misuse the prouisions of tle VSV Act to auoid paAment of compulsory interest on uthich no dispute anses' ln uieu of tle aboue' the application fttedunder DTVSV is hereby REIECTED'' 14. From a perusal of the above, we find that the declaration was filed by the petitioner on 03.03'2021 It is stated that the appeals were filed before the Income Tax Appellate Tribunal on 24'02'2021 against the order of the first appellate authority dated 10'10'2019' As no appeal was pending as on the specified date, i'e'' on 31'03'2020 (should be dated 3l.Ol.2O2O as we shall see), and as the time to file the appeal had expired, the assessee (petitioner) was not eligible to file the declaration under the vivad Se vishwas Act, and accordingly she was not treated as a valid declarant. However, respondent no'2 proceeded further and also held that the declaration was not maintainable on merit as well by holding that the dispute was of disputed interest, whereas as per the grounds ofappeal before the first appellate authority and the Income Tax Appellate Tribunal the dispute was on quantum of addition and not on interest portion' rs. Ar the outset, we are of the view that when the declaration of the petitioner was rejected on the glound of non-maintainability / ineligibility, it was unnecessary for respondent No'2 to have entered into the merit of the claim made by the declarant and thereafter to (* . t, t, 7 hold that declarant was Vishwas Act. wP .28ri. not entitled to the relief under the Virud S\" under, viz., \"Sir, in the past our Gouemment has taken seueral measures to reduce tax titigations. In the last budget, Sub Ka Vishutas scheme uas brought in to reduce litigation in indirect taxes. It resulted in settling ouer 1,89,OOO cases. CurrentlA, there are 4,1S,OOO direct tax cases pending in uarious appellate forums, i.e., Commissioner (Appeals), ITAT, High Court and_ Supreme Court. This year, I propose to bring a scheme similar to tlrc indirect tox, Sub Ka Vishtaas for reducing litigations euen in tle direct taxes. Under the proposed Viuad Se Vi.shu.tas scheme, a taxpaAer utould be required to pag onlg the amount of disputed taxes and utitl get complete waiuer of interest and penalty prouided he pags, bg 31st March, 2020. Those who auail the scheme after 31 March, 2O2O, ui haue to palJ some additional amount. The scheme u_till remain open till 3oth June, 2020. 16. Let us now examine the said decision to hold the petitioner as 'not a valid declarant, and / or ,not eligible, in the context of the Vivad Se Vishwas Act and the related judicial pronouncements. 17 . The Vivad Se Vishwas Act is an act to provide for resolution of disputed tax and for matters connected therewith or incidental thereto. While introducing the related bill in parliament, the Hon,bie Finance Minister made the following speech on 01 .02.2020, which reads as / uB,J & AVR,.) wp_2825o_2O21 7* ToxpaAers in uhose cases appeals are pending at ang leuel can beneftt from this scheme. I Lape the taxpagers will make use of this opportunitg to get relief from uexatious litigation process.\" 18. From a perusal of the speech of the Hon,ble Finance Minister, as extracted above, it is seen that the central Govemment was concemed by the huge pendency of direct tax cases in various appellate forums. Therefore, it was proposed to bring a scheme which was similar to the scheme introduced for resolution of indirect tax disputes, the purpose being for reduction of litigation in direct taxes. It was proposed that the eligible taxpayer wpuld be required to pay only the amount of disputed tax and would get complete waiver of interest and penalty if he paid by 31.03.2020. Those availing the scheme after 31.03.2020 would have to pay some additional amount. It was stated that the scheme would remain open till 30.06.2020. It was clarified that the taxpayers in whose cases appeals were pending at any level could benefit from the scheme. The speech of the Hon'ble Finance Minister, while introducing the related bi,, indicates or reveals the intention behind introduction of the bill leading to enactment of the Vivad Se Vishwas Act. To remove any doubts in this regard, we may advert to the statement of objects and reasons t, necessitating enactment ofthe aforesaid act, which reads as under : nOuer tle gears pend.encg of appeals Jiled by ta-xpagers as utell as Gouemment has increased. due to I l I wp_2 825Oi the fact that the number of appeals that are ftled. is much higher than the number of appeals that are disposed. As a result, a huge amount oif disputeci ta-r atrears is locked_up in these appeals. As on 30th Nouember, 2 O I 9 , the amount of disputed d.irect tax arrears is Rs. 9.32 lakh crores. Consid_ering that the actual direct tax collection in the financial year 2Olg_19 a.tas Rs. I L3 lakh crores, the disputed tax ar-rears constitute nearlA one year direct tax collection. 2. Tax disputes consume copious amount of time, energy and resottrces both . on the part of tLrc Gouernment as tDell as taxpagers. More ouer, theg also depive the Gouemment of the timely collection of reuenue. Thereyore, there b an urgent need to proutde for resolution of pending tax d_isputes. This tuill not onlA benefit the Gouemment bg generating timelg reuenue but also the taxpayers u.tho uill be able to deplog the time, energy and resources saued by opting for such dispute resolution toutards their business actiuities. 3. It is, therefore, proposed. to introduce direct tax Viuad Se Vishutas Bill, 2020 for d.ispute resolution related to direct taxes, which, inter alia, prouid.es for the follotuing, namely :- (a) the prouisions of the Bill shall be applicable to appeals filed by taxpaAers or the Gouernment, tahich are pending uith the Commissioner (Appeats), Income Tax Appellate Tribunal, High Court or Supreme Court as on 31st January, 2020 irrespectiue of whether demand. in such cases i,s pending or has been paid; (b) the pending appeal mag be against dkputed. tax, interest or penaltg in relation to an assessment or re-assessment order or against disputed interest, disputed fees uhere there is no disputed. tax. Fttrther, the appeal may also be against the tax d.etermined_ on - ,.v ..o defaults in respect of tax deducted at source or to:c collected at source; (c) in aPPeals related to disPuted tax, the declorantshatlontgpagtheuholeofthedisputedtax' if the pagment is made before 31st dag of March' 2024 and. for the paAments made ofter 31st day of March' 2O2O, but on or before a d\"ate notified bg the Central Gouemment, the amount payable shalt be increased by 7 Oo/o of tle dis?uted tax; (d.) in appeals related to disputed penalty ' disputed interest, or disputed fee, tlw amount pqAable bg the declarant shall be 25 per cent of the disputed penaltg, disputed interest or disputed fee, as the case mag be, if the pagment is made on or before 31st dag of March, 2020. If the pagment is made after 31st dag of March, 2020, but on or before tle dite notified by the UB,J & AVR,J wp_2825o-2o21 Central Gouentment, the amount payable increased to 30% of the disputed penalty, interest, or disputed fee, as the case mag be. shall be disputed 4. The proposed Bill shall come into force on the date it receiues the assent of the President and declaration may be made thereafter up to the date to be notified by the Gouernment. \" 19, Thus, from a careful analysis of the statement of objects and reasons, as extracted above, we find that the Central Govemment was concerned about the huge pendency of appeals related to direct taxes as a result of which a huge amount of disputed tax arrears is locked up in these appeals. Noting that tax disputes consume copious amount of 'time, energy and resources, both on the part of the Govemment as well as taxpayers besides depriving the Govemment from timely t ./a.' l/7* V wp_26 250 collection of revenue, it was noted that there was an urgent need to provide for resolution ofpending tax disputes. Such resolution would not only benefit the Govsrnrnsnl by generating timely revenue but also the taxpayers who would be able to deploy the time, energy and resources saved by opting for such dispute resolution towards their business activities. 20. Thus, a conjoint reading of the speech of the Hon,ble Finance Minister as well as the statement of objects and reasons would indicate that the intgnt and purport behind enactment ofthe above act was to reduce tax disputes (appeals) pertaining to direct taxes in such a manner that it would be beneficial both to the Government as well as to the assessees. Huge amount of disputed tax araears is locked up in large number of pending appeals for early resolution of which the above act has been enacted 21. Keeping the above in mind, we may now refer to some of the provisions of the Vivad Se Vishwas Act which have relevance to the present /is before us. 22. 'Appellant' has been defined under Section 2(i)(a), amongst others, to mean - \"a person in whose case an appeal or awrit petition or special leave petition has been filed either by him or by the income tax authority or by both before an appellateforum and such appeal or petition is pending as on the specified date,,. ) P uW /4. :: l1:: UB,J & AVR,J wp_2825O -2O21 23. 'Specified Date' is defined in Section 2(1)(n) to mean' \" 31.01.2020\" \" 24. 'Declarant' has been defined in Section 2(1)(c) to mean\"'a person who files a declaration under Section 4\"' Filing of declaration and the particulars to be fumished are provided for in Section 4' The benefits which may accrue to an eligible declarant are provided in Section 3. 25. Referring back to Section 2(1)(e), we find that 'desigrrated authority' has been defined to mean, \"an fficer not below the rank of a Commissioner of Income Tax notified by the Principal Chief Commissioner for the purposes of the Vivad Se Vishwas Act\" ' 26, Under Section 2(1)0), \"last date\" has been defined to mean, \"such date as notified by the Central Government in the Official Gazette\". 27, Section 5 provides for the designated authority dealing with the declarations so filed. As per Sub-Section (1) of Section 5, the designated authority shall, within a period of fifteen (15) days from the date of receipt of the declaration, by order, determine the amount payable by the declarant in accordance with the provisions of the Vivad Se Vishwas Act and grant a certificate to the declarant containing the pafticulars of the tax arrear and the amount payable after such determination. Sub-Section (2) of Section 5 says that the It, V ._--.---+_%- wp_28250 2 28, As per Section 6, subject to the,.provisions of Section 5, the designated authority shall not institute any proceeding in respect of an offence or impose or levy any penalty or charge any interest under the Act in respect oftax arrear. 29. It may be mentioned that by subsequent notifications issued by the Ministry of Finance, Government of India, various dates relevant for the Vivad Se Vishwas Act were exter.rded. Ultimately, by the notification dt.26.02.2021., the last date for filing of deciaration was extended up to 31.03.2021. However, we do not find anything on record to suggest that the specified date initially fixed on 3l.Ol.2OZO was extended. declarant shall pay the amount so determined within fifteen (15) days from the date of receipt of the certificate and inform the designated authority about the details of such payment. On receipt of such information, the designated author.ity shall pass an order stating that the declarant has paid the amount. Sub_Section (3) of Section 5 1. makes it very clear that every order passed under Sub_Section (1) determining the amount payable under the Vivad Se Vishwas Act shall be conclusive as to the matters stated therein, and no matter covered by such order shall be re_opened in any other proceeding under the Act or any other law for the time being in force or under any agreement. , % .,,,tt ::13:: UB,J & AVR,,J wP_2825O-2O21 30. From a reading of the Vivad Se Vishwas Act' it is seen that a declarant would be eligible to file a declaration under Section 4 of the aforesaid Vivad Se Vishwas Act if his appeal or Writ Petition or Special Leave Petition filed by him or by the Income Tax authority or by both is pending as on the specified date, i.e., 31.01.2020. 31. Reverting back to the facts of the case, we find that against the order of the first appellate authority, i.e., respondent no.3, dated 10.10.2019, petitioner had filed appeal before the Income Tax Appellate Tribunal being I.T.A.No.l31ftIYDl202l on 24.02.2021. However, there was delay of (443) days, in filing the appeal. Accordingly, an application for condonation of delay was filed. ln the supporting affidavit, petitioner had pointed out that she was desirous of availing the benefit of the Vivad Se Vishwas Act. Therefore, it was contended that the delay should be condoned and the appeal should be considered to have been filed within time. We find that the leamed departmental representative had made a submission before the Income Tax Appellate Tribunal that ifthe assessee (petitioner) desired to avail the benefit under the aforesaid Vivad Se Vishwas Act, Revenue had no objection. Be that as it may, Income Tax Appellate Tribunal referred to the decision of the Madras High Court in DCIT vs. M/s. Keyaram Hotels P. Ltd2 and condoned the delay of (4a! days in liling the appeal. After condoning the delay, the Tribunal proceeded to hear the appeal. However, in view of the submissions made by the 2 T.C.A.No.694 of 2019, dated l3.lO.202O (Ma&as High Coufi) wP_282 assessee (petitioner) the appeal was dismissed as withdrawn with the clarifrcation that if the assessee's case was not accepted by the Revenue under the Vivad Se Vishwas Act then the assessee would be at liberty to move the Tribunal for reinstatement of the appeal' 32. To remove various doubts as to applicability of the Vivad Se Vishwas Act, the Central Board of Direct Taxes (C'B'D'T') issued CircularNo.2iof2020,dated04.12.2020,explainingcer1ain situations in the form of 'question and answer'' Question No'59 and the answer given thereto rnay have some bearing on the present dispute. 33. Question No.59 and the answer given thereto are extracted hereunder for ready reference, viz., \"Q.IVo.S9. Whether the taxpager in whose case tLe time limit for filing of appeal has expired before 37\"t Jan 2020 but an application for condonation of delag has been filed is eligible? Answer. If the time limit for filing appeal expired duing the period from 1* Aprit, 2019 to 31\"t Jan' 2O2O (both dates inctuded in the peiod), and the application for condonation is filed before the date of issue of this circular, and appeal is admitted by the appellate authoity before the date of filing of the declaration' such appeal tuilt be deemed to be pending as on 3l\"l Jan 2020.\" 34. From the above, we find that the situation visualised was whether the taxpayer in whose case the time limit for filing of appeal a i ''r, - ::15:: UB,J & AVR,] wP_2825o_2021 had expired before 31.01.2020, but an application for condonation of delay had been filed before the date of issuance of the circular i.e., 04.12.2020, ar,.d whether such a taxpayer would be construed to be eligible. Clarification given by the C.B.D.T. is that if the application for condonation of delay was filed before the date of issue of the circular, i.e., 04.12.2020 and if the appeal was admitted by the appellate authority before the date of filing of the declaration, such appeal would be deemed to be pending as on 3 I .01 .2020. In other words, the appeal need not be filed on or before 31.01.2020 to be construed as pending. If the application lor condonation ofdelay was filed before 04.12.2020 (which was after the specified date of 31.01 .2020) and the appeal was admitted, then it would be deemed that the appeal was pending as on 31.01.2020. 35. Thus, Central Board of Direct Taxes (C.B.D.T.), which is the highest body under the Act, has clarified by way of its answer that if the time limit for filing appeal had expired during the period from 01 .04.2019 to 3 I .01 .2020 and the application for condonation of delay was filed before the date of issue of the circular, i.e.,04.12.2020, and the appeal was admitted by the appellate authority befbre the date of filing of the declaration, such appeal would be deemed to be pending as on 3 1 .01 .2020 notwithstanding the fact that it was actually filed after 3l .01 .2020. I V wp_26250 36. Though the fact situation, as visualised by question No.59 and the answer given thereto, may not be exactly sim ar to the facts of the present case, nonetheless, the same is indicative of the view taken by the Central Board of Direct Taxes (C.B.D.T.) that a liberal approach should be adopted while considering various provisions ofthe Vivad Se Vishwas Act which appears to be in consonance with the objective of the scheme as explained by the Hon,ble Finance Minister in her introductory speech read with the statements a,d objects of the vivad Se Vishwas Act, 37. Moreover, we find that a similar issue had cropped up before a coordinate Bench of this Court in Boddu Ramesh (1 supra) where also the declaration of the petitioner dated 08.02.2021 was rejected on 31.03.2021 on the ground that the assessee had filed the appeal before the Income Tax Appellate Tribunal on 25.01.2021, thus, there being no appeal pending as on the specified date i.e., 31.01.2020. Accordingly, it was held that the declaration made was invalid and was rejected. We may mention that against the decision of the first appellate authority dated 18.09.2019, the said petitioner had preferred further appeal before the Income Tax Appellate Tribunal on 25.01.2021 along with an application for condonation of delay. The delay was condoned and the mattel' was remanded back to the first appellate authority vide order dated 15.02.2021. ln the meanwhile, the said petitioner filed declaration under the Vivad Se Vishwas Act I ,4 u8,.'} & AVR,J wp_28250-2021 on 08.02.2021 which was rejected by the designated authority on 31 .03.2021 in the following manner : \" In this case the CIT(A) dismissed the appeal on 18.09.2019 and hence, the time limit for filing further appeal expires on 18.71.2019 but the assessee illed the appeol on 25.01.2021. Since there u)as no appeal pending as on specified date, i.e', 31.01'2020' the d eclaration mode is inualid and hence, the same is rejected,\" Vivad Se Vishwas Act, this Court held as follows, viz', \"29, Though the cut-off date is mentioned as Slst dag of January 2O2O, bg Notification No.21/2O2O, dt. 04.12.2020, which has been issued bg the Board exercising powers conferred under Sections 7O and 71 of the Act of 2020, it has been stated that euen in respect of appeals where time for filing appeal has expired duing the peiod lst Apil 2019 to 31st January 2020, and an application for condonation of delay is filed before the date of issue of Circular No.21/2020 on 04.12.2020, and the appeal is admitted before the filing of declaration, such appeal is to be treated as deemed pending as on 31st January 2020. 3O. Il is to be noted that the date for filing of declaration under the Act of 2O2O opting to auail the benefit of Scheme uas oiginallg notified as 30.03.2020, ruhich was extended from time to time, including up to 31.1.2.202O. 37, Subsequentlg the time for filing declarations under tLrc Act of 2020 uas finallg extended bg Notification No.9/2021 dt.26.O2.2021 up to 31.O3.2021. V 38. After elaborate discussion on various facets governing the wp_28250 2021 So petitioners application filed. on OB.O2.2O2 j, lDas with in time. 34, In the answer prouid ed. to e.No. 59 in ctranlar No 21/ 2020, it is stated that euen ,,if the timitation for fiting appeal has expired. before 31.01.2020, i.e., the 'specifted date', if an application for cond.onation of delay is filed on or before the d,ate o/ jssue of Circalar, and the delay is cond-oned., the appeal should_ be deemed to be pend.ing as on 3 LO 1.2O20,,. 35. Ihis uould haue to be considered., in our opinion, as opplicable euen in relation to further extension of time granted for filing declarations till 31.03.2021, and cannot be resticted_ either up to tlrc date of issue of circular (ie. 04.12.2020) or euen the date for filing declaration mentioned therein ((ie.) 31.12.2020, as there cannot be any differentiation in delag a\"s it stands on the same footing be it of a d.ag or more, 35. If Board ciranlar is construed in such a restictiue manne6 as is contended by respondents, the same utould run contrary to the scLeme of the Act of 2020 and the pou-ters exercised bg Board under Section 10 and 11 to issue directions or orders in public interest or to remoue dffiattties. ) J 32. Hotueuer, tuhile proutd.tng answer to e.No.S9, in Circular No.2 J / 2020 date for filing d_eclaratitssued on 04' 12'2020' the last on under the Act of 2O2O was consid.ered as 31.12.2020, as notifted bg tlle Gouentment at tLrc releuant point in time. 33. 1, is onlA on 31.12.2020, the time for fihng declarattons und.er the Act of 202O :u;as ertended. for further peiod. ::19:: 97. Tlerefore, we are unable to persuade ourselues to confine tle beneJit of \"deemed pendencA of appeal\" ontg if an apptication for condnnation is filed on or before 04.12.2020, as in our uieu no significance can be attached to the said d\"ate of issue of the circular' since, uhat is required to be considered is the pendencg of the appeat uith an apptication for condonation and the admission of the appeal as on the date of filing of declaration. 40. The natural corollary of the Tribunal accepting the application for condonation is to the effect that tle appeal before the Tribunal as hauing been filed in time, since, such condonation would relate back to the date bg uthich time, the appeal against the order of CIT ought to haue been filed bg the petitioner. Once it is considered that the appeal before the Tribunal is deemed as hauing been filed in time, the same uould UB,J & AVR,J wp_28250-2021 I 38, Thus, in our uiew, euen after 04'12'2020, if an appeal is filed\" uith an application for condonation of delag and the appeal is admitted by the appeltate authoitg before the date of filing of the declaration, the benefit is to be extended, as otlrcrwise, it would lead to creation of sAparate class of persons among the declarants, lt ithout ang reasonable Qasis, resulting in discimination therebg uiolating Article 14 of the Conshtution of India. 39, In the present case, the petitioner hauing filed an appeal before T?ibunal along uith an application for condonation and the Tibunal, hauing heard the matter on O5.O2.2O2 7 bg condoning the delag, it is to be construed as 'pending' appeal as on the date of ftling of declaration on OB.O2.2O2 1. As a matter of fact, the Tibunal bg order dt.15.02.2021, allotued the appeal of the petittoner remitted tLLe matter back bg restoring the appeal on the file of CIT, for fresh adjudication. I ::20:: haue to be construed a ,,specified d.ate,,, clne ,n\" no\"n' been filed before the be pendins before the ;r:;\"7:;;: ::;,';;:i,:;:\":: would haue to be consid.ered as o, ,opp\"llort, o\" defined in Section 2(1)(a)(i) of the Act of 2o2O, qnd. the tax a.s assessed would haue to be consid\"ered. as 'dbputed tax', as d.efined\" under Section 2OA)@) of the Act of 2020. 47, Altematiuely, it b to be noted that since, the last date for filing declaration had. been ertended up to 31.03.2021 and the Tribunal, hauing found. cogent reasons to condone the delag and allotuing the appeal filed bg the petitioner and remitting the matter back to the CIT bg its order dt.1S.O2.2O2l, would. automatically reuiue and restore the appeal, uthich uLas dismissed. bg the CIT bg his order dt.18.O9.2O19. Tluts, bg ord.er of tLrc Tibunal dt.15.02.2021, the appeal of the petitioner before tte CIT filed on 19.02.2019 w'outd. stand\" reuiued., and such restoing of appeal relates back the oiginal date of filing, uLhich is within the \"specified date\" as per Act of 202O. 42, Thus, considered from any angle, the declaration/ application submitted bg the petitioner on O8.O2.2O21 or the reuised declaration/ application submitted in Form 1 and 2 on 31.03.2027 cannot be considered as 'inualid' and liabte for 'rejection'. 43. Furtlrcr, as noted aboue, the Act of 2O2O is a beneficial piece of legislation and the benefit under such legislation should enure to tLrc benefit of the assessee and cannot be denied bg taking hgper-technical uieu.t. 44, In uieut of the aboue, this Court is of the considered uieu that the remark/ reason giuen by the 1st respondent in rejecting the declaration in Forms 7 and 2 filed bg the petitioner on 31.03.2021 as utell as ub,J 6i AVH,J wp_2825o 2021 7 ) r---*\" '.z2lzl UB,J & AVR,J wp 28250-2021 on 2O'O2'2O21 cannot be sustained ' as the said reqsons are not inconsonance with the scheme of the Act and also do not conflrm to the intent and purpose of tlLe Legislation' \" 39. This Court had thus taken the view that when the lncome Tax Appellate Tribunal had accepted the application for condonation of delay and had condoned the delay' the effect would be that the appeal before the Income Tax Appellate Tribunal would be construed to have been filed within time and the limitation would relate back to the date by which time the appeal against the order of the first appellate authority ought to have been filed' Once it is considered that the appeal before the Income Tax Appellate Tribunal is deemed to have been filed within time, the same would be construbd as having been tlled before the specified date which in tum would mean that the petitioner would have to be construed to be an appellant as defined in Section Z(t)(a)(i) of the Vivad Se Vishwas Act' 40. Though leamed counsel for the Revenue submits that Special Leave Petition has been preferred against the said decision of the coordinate Bench, but he fairly concedes that there is no sfay order' 41, Insofar the present case is concemed' petitioner filed her declaration on 03.03.2021 which was before the last extended date for frling declaration i.e., 31.03.2021' But, before 03'03'2021' the appeal was filed by the petitioner before the Income Tax Appellate Tribunal or 24.02.2021 along with an application for condonation of delay' 1 The delay was condoned on 23.03.2021 on which date the appeal was also disposed of considering the submission of the petitioner that she would fiie declaration under the Vivad Se Vishwas Act which was not objected to by the Revenue. 42. On due consideration, r'\"'e are in agreement with the view taken by the coordinate Bench in Boddu Ramesh (1 supra) mol'e particularly to those expressed in paraglaph nos.40 and 43 thereof' 43. That apaft, r.ve find that rejection of the declaration was not preceded by any notice or hearing. Though such notice or hearing is nor provided under Section 5 of the Vivad Se Vishwas Act, !t is axiomatic that principles of natural justice, which is the very essence of faimess, demands that before an advoise decision is taken affecting the rights and liabilities of an aggrieved person, he ought to be put on notice and given an opportunity of hearing' The same having not been done in the present case, the impugned decision suffers frorn violation of the principles of natural justice which is one more reason why we are constrained to interfere with the same. 44, Accordingly, we set aside the impugned order dated 20.04'2021 passed by respondent no.2 rejecting the declaration / application ofthe petitioner dated 03.03.2021 for settlement oftax dues under the Direct Tax Vivad Se Vishwas Act,2020 and remand the matter back to the autholity for taking a fresh decision in accordance with law' ) J ..71,' 45. Since the present designated authority has already disclosed his mind on the merit of the declaration in the impugned order dated 20.04.2021, we direct the jurisdictional Principal Chief Commissioner of Income Tax to assign another designated authority to deal with the declaration ofthe petitioner. Let a fresh decision be taken by the new designated authority on the declaration of the petitioner within a period of eight (08) weeks from the date of receipt of a copy of this order. 46. Writ Petition is disposed of' No order as to costs' 41. Writ Petition, shall stand closed. //TRUE COPY// 10.Two CD CoPies 11. One spare coPY one fair copv to the Honourable SRI JusTlCE UJJAL BHUYAN -\"- '-'tf;;hi. Lordshlps kind perusal) one fair copy to the Honourable SRI A'VENKATESHWARA REDDY -\"- '-'itoihlt Lordships kind perusal) 1. The Secretary, Union of lndia, Ministry of Frnance' New Delhi' 2. The Desisnated Authority tln?\"i in\" di'i\"t Tax Vivad-se vishwas Act' 2020' oio the Princioal Chief commilslo\"n\"i Jt rnto'\" Tax' lT Towers' Hyderabad' 3 i'h\". i;;[j..]on.,. oi in.or. t,'jnpptJtt)'6' lr rowers' Ac Guards' - !il:i:3'lt nt commissioner of lncone rax' ci'cle '1-4(l LJloom No 635' 6th - ii;;'e B[Ci tr ro*\"r.t, AcGuards' Hvderabad ' s00004' 5. 11 L.R. CoPies. i. rn. Uiia*\"S.ir.trry, Union of lndia' Ministry of Law' Justrce and companv Affarirs, New Delhi. L t[#lJ sil el:cffi ffi tii\"-T !'l,'.i'fi I ls I il8 id [,:3i : ^ \" -': :: : 1: e one cc to SRt. NAMAV;fiiju'iAiiSr-rwnn nno (AssGliAdvocate [oPUc] To 4i,{\" UB,J & AVR,] wp-28250_2021 As a sequel, miscellaneous applications pending if any in this Sd/.MOHD:SANAULLAH ANSARI \"\"'-'''-'A;5i3inr'ri nEctsrnrn / {; SECTION OFFICER HIGH COURT DATED:0610112022 ORDER WP.No.28250 of 2021 DISPOSING OF THE W.P WITHOUT COSTS. itE. s-rr 2 B JAN 2022 J lc 4.t __,--i_- "