SAYRA BANO V. PRINCIPAL COMMISSIONER OF INCOME TAX DEHRADUN

WPMS/465/2021

AI Insights

The case involves multiple writ petitions filed by Sayra Bano and Shamshad Hassan against the Principal Commissioner of Income Tax, challenging the rejection of their declarations under the Direct Tax Vivad Se Vishwas Act, 2020. The primary legal issue was whether the petitioners' appeals, which were pending as of January 31, 2020, the specified date under the Act, qualified for the benefits of the Act despite being filed with delay condonation applications. The court examined the definitions and implications of 'specified date' and 'appellant' under the Act, referencing various Supreme Court judgments to conclude that the appeals were indeed pending and the petitioners were entitled to the benefits under the Act.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 766994 (HC-UTTARAKHAND)
• Appeal Type: Others
• Pronouncement Date: 27-09-2021
• Assessment Year: misc
• Other Referred Cases: Raja Kulkarni Vs. State of Bombay, Nagendra Nath Dey Vs. Suresh Chandra Dey, Commissioner Income Tax, Rajkot Vs. Shatrusailya Digvijaysingh Jadeja, Dr. Renuka Datla and others Vs. Commissioner Income Tax and another, Tirupati Balaji Developers (P) Ltd. Vs. State of Bihar & Others, Ritesh Bakuleshbhai Mehta Vs. The Principal Commissioner of Income Tax, Shyam Sunder Sethi v. Pr. Commissioner of Income Tax -10 & Ors., Commissioner of Income Tax v. Shatrusailya Digvijaysingh Jadeja, Tushar Agro Chemicals Vs. The Principal Commissioner of Income Tax
• Laws Referred To: Direct Tax Vivad Se Vishwas Act, 2020, Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: HARI MOHAN BHATIA
• Assessee Lawyers: SAGAR KOTHARI
• Keywords: Assessment Order; Direct Tax Vivad Se Vishwas Act; Penalty; Specified date; Tax liability
• Section: 147; 271(1)(c); 132; 144C; 264; 143; 132A; 249(2)

Judgement Text

"HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 465 of 2021 Sayra Bano ..…Petitioner Versus Principal Commissioner of Income Tax and others .… Respondents With Writ Petition (M/S) No. 466 of 2021 Shamshad Hassan ..…Petitioner Versus Principal Commissioner of Income Tax and others .… Respondents With Writ Petition (M/S) No. 471 of 2021 Shamshad Hassan ..…Petitioner Versus Principal Commissioner of Income Tax and others .… Respondents Present :- Mr. Sagar Kothari, Advocate for the petitioner. Mr. Hari Mohan Bhatia, Advocate for the respondents. Dated: 27th September, 2021 JUDGEMENT Hon’ble Sharad Kumar Sharma, J. Before dealing with the arguments, which has been extended by the learned counsel for the parties, with regard to the implications or the bearing which the term “specified date”, under the Direct Tax Vivad Se Vishwas Act, 2020, would have in the set of circumstances of the present cases, it becomes inevitable for this Court to precisely deal with the facts, which are engaged consideration independently in each of the Writ Petitions. 2. In Writ Petition No. 465 of 2021, the petitioner has come up with the case, that by the impugned communication dated 25th January, 2021 and by the consequential order, which was passed, as a consequence thereto, which was later on electronically generated, in fact, has not rightly appreciated and applied the principles of the Act of 2020, in relation to considering the claim of the petitioner, for the purposes of declaration of the petitioner, for the purposes of 2 assessing the tax liability for the assessment years 2011-12, in accordance with the provisions of the Act of 2020. 3. The petitioner in the Writ Petition, has contended that the petitioner has filed her return of the income tax for the assessment year 2011-12, i.e. for the relevant previous year, declaring the total accruable income, which had accrued to her as to be Rs. 3,07,700/-, whereas, respondent No.3, is said to have computed the assessment of a total income and has assessed, it as to be Rs. 20,86,730/-, and after making certain additions in the assessment order, which was rendered under Section 143, to be read with Section 147 of the Income Tax Act, has raised a demand of an additional assessed tax liability, to be paid by the petitioner to the tune of Rs.7,63,850/- and further the respondents have imposed the penalty by an order of 21st September, 2016, while exercising its powers under 271 (1) (c) of the Income Tax Act and has raised an additional demand of tax of Rs.4,51,000/-. 4. Consequently, after the aforesaid determination, the total demand of tax liability, which was sought to be levied upon the petitioner was attempted to be recovered in the month of 2019, hence, the petitioner submits, that as against the said assessment of tax made by the respondents, she had preferred an Appeal under Section 249 (2) of the Income Tax Act, i.e. as against the assessment order of 22nd March, 2016, which was numbered as Appeal No. 10268/CIT (A)/DDN/2017-18, by filing it before respondent No.2 on 13th December, 2017, this would be the date of filing of the Appeal under Section 249 (2) of the Income Tax Act. 5. The petitioner has contended that in accordance with the provisions contained under Sections 3 and 4 of the Act of 2020, the forum which has been provided therein for the purposes of redressal of the dispute for the remittance of the tax matter, connected with or incidental thereto, would still be left open to be considered by the respondents in the light of the provisions contained under Section 3 3 and 4 of the Act of 2020. But, however, the respondents/Appellate Authority, by virtue of the impugned order, which is under challenge, had declined to accept and extent the said benefit vide communication dated 25th January, 2021, on the ground, that as on the “specified date”, i.e. on 31.01.2020, the Appeal itself was not pending, as it was contemplated under the Act of 2020. 6. In the connected Writ Petition No. 466 of 2021, the petitioner has almost contended an identical issue and has questioned the order / communication dated 22nd January, 2021, whereby, the respondent No. 1 has rejected the Review Petition of the petitioner and has informed the same by electronically generated status of the review petition of the petitioner and declined to consider the declaration of the petitioner for the assessment year 2011-12 in accordance with the provisions of the Act of 2020. 7. The factual backdrop in this case, was that the petitioner had filed his return for the income tax assessment years 2011-12, with the year ending on 31st March, 2011, declaring the total income accruing to him as Rs. 8,87,103/, whereas, the respondent No.3 has completed the assessment and has assessed the total income tax payable by the petitioner to this Writ Petition, to the tune of Rs.13,06,870/-and after the assessment made under Section 143 (3) to be read 147 of the Income Tax Act, has also raised a demand of a sum of Rs.2,90,110/- so far it relates to the imposition of penalty which was imposed upon the petitioner by an order 21st September, 2016, which was passed while exercising the powers under Section 271 (1) (c) of the Income Tax Act. 8. The petitioner contends that as against the assessment which was made by an order dated 22nd March, 2016, he had preferred an Appeal under Section 249 (2), which was numbered as Appeal No.10267/CIT(A)/DDN/2017-18, which was filed by petitioner before respondent No.2, the appellate authority on 31st December, 2017. 4 9. In Writ Petition No. 471 of 2021, the petitioner based on almost an identical facts and circumstances, has challenged the communication of 22nd January, 2021, as rendered by respondent No.1, which was later on electronically generated and communicated to the petitioner by Annexure-6 to the Writ Petition, pertaining to the income tax assessment declaration which was made by the petitioner, for the assessment years 2010-11 and had sought its redressal by attracting the provisions contained under Sections 3 and 4, of the Direct Tax Vivad Se Vishwas Act, 2020. 10. Factually, the petitioner has come up with the case, in the Writ Petition, that so far as the petitioner is concerned, the income which accrued to him for the assessment years 2010-11, for the year ending on 31st March, 2010, was self-assessed by the petitioner, as to be Rs. 2,22,014/-, whereas the respondent No.3, after re-assessing the tax liability payable by the petitioner under Section 143 (2), to be read with Section 147 of the Income Tax, has assessed the income tax to the tune of Rs.17,72,010/-, thereafter imposing the penalty on the demand on the petitioner to the tune of Rs.4,40,000/-, while exercising its powers under Section 271 (1) (c) of the Income Tax Act by an order of 21st September, 2016. 11. The petitioner has submitted that being aggrieved against the assessment order thus made by the assessing authority, for the assessment years 2010-11 on 22nd March, 2016, he has preferred an Appeal, under Section 249 (2) of the Income Tax Act, being Appeal No. 10266/CIT(A)/DDN/2017-18, by preferring the same before the respondent No.2 on 31st December, 2017. 12. On the basis of the aforesaid backdrop, the controversy, which would be confined to be considered by this Court would be, as to whether the determination of the assessment of the tax liability of the income tax, as well as the consequential penalty, which has been imposed by the impugned orders, could be made as a subject matter of 5 scrutiny under Sections 3 and 4 of the Direct Tax Vivad Se Vishwas Act, 2020, and would it fall to be for consideration under Sections 3 and 4 of the Act of 2020 or not. 13. Section 3 and 4 of the Act is extracted hereunder :- “3. Subject to the provisions of this Act, where a declarant files under the provisions of this Act on or before a last date, a declaration to the designated authority in accordance with the provisions of Section 4 in respect of tax arrear, then, notwithstanding anything contained in the Income-tax Act or any other law for the time being in force, the amount payable by the declarant under this Act shall be as under, namely:- Sl. No. Nature of tax arrear. Amount payable under this Act on or before the 31st day of March, 2020. Amount payable under this Act on or after the 1st day of April, 2020 but on or before the last date. (a) where the tax arrear is the aggregate amount of disputed tax, interest chargeable or charged on such disputed tax and penalty leviable or levied on such disputed tax. amount of the disputed tax. the aggregate of the amount of disputed tax and ten per cent. of disputed tax: provided that where the ten per cent. of disputed tax exceeds the aggregate amount of interest chargeable or charged on such disputed tax and penalty leviable or levied on such disputed tax, the excess shall be ignored for the purpose of computation of amount payable under the Act. (b) where the tax arrear includes the tax, interest or penalty determined in any assessment on the basis of search under section 132 or section 132A of the Income-tax Act. the aggregate of the amount of disputed tax and twenty-five per cent. of the disputed tax: provided that where the twenty-five per cent. of disputed tax exceeds the aggregate amount of interest chargeable or charged on such disputed tax and penalty leviable or levied on such disputed tax, the excess shall be ignored for the purpose of computation of amount payable under this Act. the aggregate of the amount of disputed tax and thirty-five per cent. of disputed tax: provided that where the thirty- five per cent. of disputed tax exceeds the aggregate amount of interest chargeable or charged on such disputed tax and penalty leviable or levied on such disputed tax, the excess shall be ignored for the purpose of computation of amount payable. 6 (c) where the tax arrear relates to disputed interest or disputed penalty or disputed fee. twenty-five per cent. of disputed interest or disputed penalty or disputed fee. thirty per cent. of disputed interest or disputed penalty or disputed fee: ________________________________________________________ Provided that in a case where an appeal or writ petition or special leave petition is filed by the income-tax authority on any issue before the appellate forum, the amount payable shall be one-half of the amount in the Table above calculated on such issue, in such manner as may be prescribed: Provided further that in a case where an appeal is filed before the Commissioner (Appeals) or objections is filed before the Dispute Resolution Panel by the appellant on any issue on which he has already got a decision in his favour from the Income Tax Appellate Tribunal (where the decision on such issue is not reversed by the High Court or the Supreme Court) or the High Court (where the decision on such issue is not reversed by the Supreme Court), the amount payable shall be one-half of the amount in the Table above calculated on such issue, in such manner as may be prescribed: Provided also that in a case where an appeal is filed by the appellant on any issue before the Income Tax Appellate Tribunal on which he has already got a decision in his favour from the High Court (where the decision on such issue is not reversed by the Supreme Court), the amount payable shall be one-half of the amount in the Table above calculated on such issue, in such manner as may be prescribed. 4. (1) The declaration referred to in section 3 shall be filed by the declarant before the designated authority in such form and verified in such manner as may be prescribed. (2) Upon the filing the declaration, any appeal pending before the Income Tax Appellate Tribunal or Commissioner (Appeals), in respect of the disputed income or disputed interest or disputed penalty or disputed fee and tax arrear shall be deemed to have been withdrawn from the date on which certificate under sub-section (1) of section 5 is issued by the designated authority. (3) Where the declarant has filed any appeal before the appellate forum or any writ petition before the High Court or the Supreme Court against any order in respect of tax arrear, he shall withdraw such appeal or writ petition with the leave of the Court wherever required after issuance of certificate under sub-section (1) of section 5 and furnish proof of such withdrawal alongwith the intimation of payment to the designated authority under sub-section (2) of section 5. (4) Where the declarant has initiated any proceeding for arbitration, conciliation or mediation, or has given any notice thereof under any law for the time being in force or under any agreement entered into by India with any other country or territory outside India whether for protection of investment or 7 otherwise, he shall withdraw the claim, if any, in such proceedings or notice after issuance of certificate under sub- section (1) of section 5 and furnish proof of such withdrawal alongwith the intimation of payment to the designated authority under sub-section (2) of section 5. (5) Without prejudice to the provisions of sub-sections (2), (3) and (4), the declarant shall furnish an undertaking waiving his right, whether direct or indirect, to seek or pursue any remedy or any claim in relation to the tax arrear which may otherwise be available to him under any law for the time being in force, in equity, under statute or under any agreement entered into by India with any country or territory outside India whether for protection of investment or otherwise and the undertaking shall be made in such form and manner as may be prescribed. (6) The declaration under sub-section (1) shall be presumed never to have been made if,— (a) any material particular furnished in the declaration is found to be false at any stage; (b) the declarant violates any of the conditions referred to in this Act; (c) the declarant acts in any manner which is not in accordance with the undertaking given by him under sub- section (5), and in such cases, all the proceedings and claims which were withdrawn under section 4 and all the consequences under the Income-tax Act against the declarant shall be deemed to have been revived. (7) No appellate forum or arbitrator, conciliator or mediator shall proceed to decide any issue relating to the tax arrear mentioned in the declaration in respect of which an order has been made under sub-section (1) of section 5 by the designated authority or the payment of sum determined under that section. 14. If the provisions of the said Act are taken into consideration in its entirety, it particularly makes emphasis upon, that the implications of the procedure for the purpose of determination of the tax liability or a declaration which has been made under Section 3, could be considered under the said Act of 2020, provided the Tax Appeal, preferred by the assessee against the assessment order for the specified assessment year i.e. under Section 249 (2) of the Income Tax Act, was pending consideration on the specified date, which the Act provides as to be 31.01.2020. 8 15. The “specified date”, as per the Act of 2020, is concerned, that has been defined under Sub-section (n) of Section 2 of Act, which reads as under :- “(n)“specified date” means the 31st day of January, 2020,” 16. Hence, in view of that specified cut-off date provided under Section 2 (n) of the Act of 2020, the specified date under the Act itself, it is needless to say, that in view of the factual observations which has been made above by this Court, admittedly, in all three Writ Petitions, the appeals of the petitioners were already pending consideration ever since 2017, meaning thereby, much before the specified date as provided under the Act i.e. 31.01.2020. 17. Hence, the contention of the learned counsel for the petitioners was that, since the Appeal was itself pending consideration as per the Act, their claim for determination of the tax liability will fall to be under Sections 3 and 4 of the Act, which is extracted above. 18. This fact has been strongly refuted by the learned counsel for the respondents, on the ground that, if the appellant described under the Act of 2020, is taken into consideration in the light of the provisions contained Section 2 (1) (a) (ii) of the Act, it means, that the Assessing Officer, or when an order has been passed by the Commissioner (Appeals) or the Income Tax Appellate Tribunal, wherein, an embargo for not attracting the provisions of the said Act has been created, since describes the appellant in the following manner. The relevant provisions is extracted hereunder :- (ii) a person in whose case an order has been passed by the Assessing Officer, or an order has been passed by the Commissioner (Appeals) or the Income Tax Appellate Tribunal in an appeal, or by the High Court in a writ petition, on or before the specified date, and the time for filing any 9 appeal or special leave petition against such order by that person has not expired as on that date; The benefit under the Act of 2020, would not be available to the petitioners, as they were not the appellants as per the Act of 2020. 19. In response to this precise argument of the learned counsel for the respondent, the learned counsel for the petitioner has submitted, that the parameters provided under (ii) of Sub-section (1) of Section 2, the “appellant” as described under the Act, would not be applicable in the circumstances of the instant case, for the reason being that, his submission is based upon the interpretation given to the definition of “appellant” provided under (i) of Sub-section (1) of Section 2 of the Act, which reads as under :- “(i) a person in whose case an appeal or a writ petition or special leave petition has been filed either by him or by the income-tax authority or by both, before an appellate forum and such appeal or petition is pending as on the specified date;” 20. The learned counsel for the respondents had carved out an exception contending thereof that since the appeals which were preferred by the petitioners’ in relation to their respective assessment years as on 13th December, 2017, since was preferred along with the delay condonation application, it ought not to be treated, as to be a pending appeal, on the specified date in order to bring it within the ambit of the definition of the “specified date” as provided under Section 2 (n) of the Act. 21. The learned counsel for the respondents submits, that in the light of the provisions of (ii) of Sub-section (1) of Section 2 of the Act, the exception provided therein, will not be applicable to the petitioner and hence, he supports the view which has been taken by the respondent No.1, while rejecting the claim of the petitioner and, as consequence thereto the rejection of the Review Petition under the Act of 2020. 10 22. On the other hand, the learned counsel for the petitioner, in support of his contention, has submitted, that as far as the law pertaining the income tax is concerned and if it is to be read in the light of the provisions of Act of 2020, which classified the “specified date”, since there is no further classification which has been made by the taxing statute pertaining to the nature of Appeal and its stage of pendency, hence even, if the appeal has been preferred along with the delay condonation application too, then too it would be treated, as to be a pending appeal in order to bring it within an exception of the provisions contained under Section 2 of the Act of 2020. 23. Hence, in support of his contention, primarily the petitioner had made reference to a Constitution Bench judgment, which was rendered in the year 1954 as reported in AIR 1954 SC 73, Raja Kulkarni Vs. State of Bombay, where the Constitution Bench of the Hon’ble Supreme Court in the matter of Raja Kulkarni (Supra), was dealing with the issue, as to what would be the classification of appeals and its nature of pendency, it has to be interpreted and in what manner! Though the said judgment was in the context of the provisions contained under the Industrial Disputes Act, but primarily the finding recorded in para 6 of the said judgment, which is extracted hereunder if it is taken into consideration, it rather has laid down, that the wider principles, which has to be considered, pertaining to the status of an appeal, would be inclusive of, to bring within its ambit the appeals, which has been preferred, along with the delay condonation application, because the Legislature itself has not carved out an exception or distinction, about the pendency of an appeal and its nature, hence, it had concluded that even if an appeal has been preferred along with the delay condonation application, it would be treated to be as good as an appeal to attract the benefits, which were contemplated under Section 24 of the said Act, and it would amount to be the pendency of a valid and competent appeal under the Act. Para 6 is quoted hereunder :- 11 “6. It is contended that section 24 contemplates the pendency of a valid and competent appeal, but as no valid or competent appeal under the law was pending, the appellants committed no offence under section 27. We are unable to accept this contention. Section 24 on a plain and natural construction requires for its application no more than that an appeal should be pending and there is nothing in the language to justify the introduction of the qualification that it should be valid or competent. Whether the appeal is valid or competent is a question entirely for the appellate court before whom the appeal is filed to determine, and this determination is possible only after the appeal is heard, but there is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent, e.g., when it is held to be barred by limitation or that it does not lie before that court or is concluded by a finding of fact under section 100 of the Civil Procedure Code. From the mere fact that such an appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the court. Article 182(2) of the Indian Limitation Act prescribes three years' period of limitation for the execution of a decree or order to run from the date of the final decree or order of the Appellate Court \"when there has been an appeal.\" The Privy Council construed the latter phrase to mean that any application by a party to the appellate court to set aside or revise a decree or order of a court subordinate thereto is an \"appeal\" within the meaning of the above provision, even though it is irregular or incompetent, or the persons affected by the application to execute were not parties, or it did not imperil the whole decree or order. They refused to read into the words any qualification either as to the character of the appeal, or as to the parties to it. [Nagendra Nath Dey and Another v. Suresh Chandra Dey and Others]. We consider that the word \"appeal\" must be construed in its plain and natural sense without the insertion of any qualifying words such as are intended to be introduced by the contention raised before us. There is yet another reason for not construing the word \"appeal\" in the manner suggested by the appellants and that is that the legislature in introducing this provision contemplated that industrial peace should not be disturbed so long as the matter was pending in the court of appeal, irrespective of the fact whether such an appeal was competent in law. If this were not the case, the parties could easily defeat the object of the legislature by arrogating to themselves the right to decide about the competency of the appeal without reference to the court, commit a breach of the peace and escape the penalty imposed by section 27. There was no justification for the appellants to instigate the workers in the so-called bona fide belief that section 27 did not apply to an appeal which they thought was incompetent. In this view of the matter it is not necessary to consider whether the conferment of a right of 12 appeal during the pendency of a proceeding can affect the rights of the parties to those proceedings and make the order in the pending proceeding appealable.” 24. In fact, this principle, which has been laid down in para 6 of the judgment of Raja Kulkarni (Supra), was based upon yet another prior judgment which was rendered by the Hon’ble Apex Court in the matter of Nagendra Nath Dey Vs. Suresh Chandra Dey, wherein, the Hon’ble Apex Court has laid down that by insertion or by qualifying the words as are intended to be introduced by the respective contentions raised contrary to the intention of the legislature by not construing the word, i.e. the ‘Appeal’ in its appropriate manner than as, what it has been suggested by the appellate provision, it will run contrary to the intention of the appellate provisions itself, even if the appeal is pending along with the delay condonation application, it would still be an appeal. 25. This ratio laid down by the Hon’ble Apex Court was later on considered in yet another judgement of the Hon’ble Apex Court, as rendered in Civil Appeal No. 4411 of 2003, in the matter of Commissioner Income Tax, Rajkot Vs. Shatrusailya Digvijaysingh Jadeja, as decided by His Lordship’s on 1st September, 2005. In this matter too, the Hon’ble Apex Court, was faced with almost identical situation, where the appeal under the taxing laws, was pending consideration, along with the delay condonation application and the issue was yet again, as to whether such an appeal pending with a delay condonation application could be treated as to be a pending appeal, to bring it within the ambit Section 2 (I) (ii) of the Act of 2020. In fact, based on the principles, which has been laid down by the Hon’ble Apex Court in the 1954 judgment, i.e. in Raja Kulkarni Vs. State of Bombay (Supra), the Hon’ble Apex Court has further considered its implications from extracting its ratio as propounded by interpreting the provisions of Appeal as it was under consideration therein, provided under Section 95 (i) (C), if the appeal or the revision is pending, on the date of the filing of the 13 declaration under Section 88 of the Scheme, as it was enforceable at that relevant point of time. It would be legally treated to be pending appeal, under given provisions of law, even if it is pending consideration with a delay condononation application, which was yet to be considered by appellate court. 26. In the said judgment of the Hon’ble Apex Court, while relying upon the ratio of the judgment of Raja Kulkarni (Supra), the Hon’ble Apex Court, has held that where an appeal has been preferred even along with the delay condonation application, then too, it would be a valid or a competent appeal, is a question, which is entirely and exclusively dependant upon for the consideration by the Appellate Court, before whom the appeal is pending, rather it had postulated that the Court is not to introduce any extra intention, to the legislation, than what appellate provisions provides under the legislation, when filing of an appeal and its pendency does not carve out an exception of a pendency of an appeal; without there being any rider to other pending applications. In fact, it has yet again postulated that an appeal would still be held to be maintainable, even if the delay condonation application is pending consideration, and orders has been passed on it. 27. Referring back to the judgement, which has been referred by the Hon’ble Apex Court, in the judgment of Commissioner Income Tax (Supra), where the reference has been made to the judgment of (2003) 2 SCC 19, Dr. Renuka Datla and others Vs. Commissioner Income Tax and another. In fact, in the said judgement too, which was dealing almost an identical issue, as to what would be status of an appeal and its effect of its pending, in the light of the provisions contained under the appellate provisions of Section 95, which was a subject matter of consideration in the said case, where specifically in Sub-section (c) of Section 95, it provided, that in a case, where no other appeal or reference or writ petition is admitted and pending; before the appellate Court or the High Court, 14 was a subject matter of consideration, where it had dealt the issue in the matter extracted hereunder. 28. The said judgment of the Hon’ble Apex Court, in fact, in para 19, has laid down that the pendency of the appeal, itself would be construed in the manner, if it has been preferred under the provisions of the Act, which contemplates and provides for an appellate provisions of filing of an appeal, when the appellate provision itself has not classified the status of appeal or the manner in which, its status has to be determined, it has to be treated as to be an existing appeal on the specified date. Hence, the said principle which has been laid down in para 19 of the said judgment, it has provided that the Courts have got no right, in any manner whatsoever to interpret as to what would be the status of the appeal or when the actual appeal legally comes into existence, when the principle appeal itself is pending consideration before the competent Appellate Court, which has been exclusively left as the subject matter of appellate court, itself to be decided on its own merit; but only for the purposes of an exception to bring it within the ambit of Section 95 (i) (c) of the Act, the Court has ultimately held that the pendency of an appeal, even if it has not legally matured to acquire an status of an appeal, will be of no relevance and effect, and it would be treated to be an appeal pending in order to extract the benefits of the scheme as made applicable in pursuance to the policy decision of the Act, as it has been made applicable from time to time. Para 19 of the said judgment is quoted hereunder :- “19. However, not all \"tax arrears\" under Section 87(m) are entitled to the benefit of the scheme. If no appeal etc. is pending in respect of the tax arrears, the benefit of the scheme is not available under Section 95(1)(c). If an appeal etc. is pending, it is not for the designated authority to question the possible outcome of the appeals, nor for the High Court to hold that the appeal was \"sham\", \"ineffective\" or \"in fructuous\" as it has. In any event, the High Court erred in holding that the entire demand raised on 31st December 1998 had been consented to by the appellant, in computing the demand on 31st 15 December 1998 the assessing officer included not only those items which had been remitted by the CIT(A) for re- determination and which were conceded to by the appellant, but also the items which had been confirmed by the CIT(A) which had not been conceded and were the subject matter of appeal before the Tribunal. Thus the question of imposition of interest under Section 234A, 234B and 234C and the determination in respect of items (iii) and (vii) referred to above, even according to the High Courts view, was the subject matter of appeal. In the facts of the case therefore, it cannot be said that there was no appeal pending in respect of the tax arrears pertaining to those items within the meaning of Section 95(1)(c).” 29. The judgment of the Division Bench of Gujarat High Court, particularly, as that rendered in Ritesh Bakuleshbhai Mehta Vs. The Principal Commissioner of Income Tax, was dealing with an almost an identical issue, which is a subject matter of consideration in the present Writ Petition. In that case, too the Division Bench was ceased with the issue interpreting, as to what inference, would the “specified date” as it has been provided under Sub-clause (n) of Section 2, is to be taken into consideration in the light of the provisions contained under Section 2 (1) (a) of the Act, and accordingly, while laying down its principle, the learned Division Bench of the Gujarat High Court, has relied on the judgment of the Hon’ble Apex Court rendered in the Commissioner Income Tax (Supra) and in para 10, while extracting the observations which were made in the said judgment from para 13, 15 and 16, has laid down that the legal position thereof remains so that no shadow or doubt to a pendency of an appeal can be said to be carved out by the Courts, when it is pending even along with the delay condonation application for seeking condonation of delay, which has occurred in filing the same. The relevant part, para no. 10 and 11 of the said judgment is extracted hereunder :- 10. At this juncture, it would be relevant to refer to the decision of Supreme Court in case of Commissioner of Income Tax v. Shatrusailya Digvijaysingh Jadeja, relied upon by the learned Senior Advocate Mr. Hemani, in which the S.C. had an occasion to deal with the issue, as to whether, the department 16 could have rejected the Declaration filed under the similar scheme called Kar Vivad Samadhan Scheme, introduced vide the Finance [No.2] Act 1998, on the ground that the Revision / Appeal filed by the concerned Petitioner was time barred or was not valid. In the said case, the Supreme Court considered the object of the said Scheme as also the other earlier decisions, and observed as under: \"13. In our view, the Scheme was in substance a recovery scheme though it was nomenclatured as a \"litigation settlement scheme\" and was not similar to the earlier Voluntary Disclosure Scheme. As stated above, the said Scheme was a complete Code by itself. Its object was to put an end to all pending matters in the form of appeals, reference, revisions and writ petitions under the IT Act/WT Act. Keeping in mind the above object, we have to examine section 95(i)(c) of the Scheme, which was different from appeals under section 246, revisions under section 264, appeals under section 260A etc. of the IT Act and similar provisions under the W.T. Act. Under the I.T. Act, there is a difference between appeals, revisions and references. However, those differences were obliterated and appeals, revisions and references were put on par under section 95(i)(c) of the Scheme. The object behind section 95(i)(c) in putting on par appeals, references and revisions was to put an end to litigation in various forms and at various stages under the IT Act/Wealth Tax Act and, therefore, the rulings on the scope of appeals and revisions under the IT Act or on Voluntary Disclosure Scheme, will not apply to this case. 15. In the case of Dr. Mrs. Renuka Delta (supra), this Court has held on interpretation of section 95(i)(c) that if the appeal or revision is pending on the date of the filing of the declaration under section 88 of the Scheme, it is not for the DA to hold that the appeal/revision was \"sham\", \"ineffective\" or \"infructuous\" as it has. 16. In the case of Raja Kulkarni v. The State of Bombay reported in AIR 1954 SC 73, this Court laid down that when a section contemplates pendency of an appeal, what is required for its application is that an appeal should be pending and in such a case there is no need to introduce the qualification that it should be valid or competent. Whether an appeal is valid or competent is a question entirely for the appellate court before whom the appeal is filed to decide and this determination is possible only after the appeal is heard but there is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent, e.g., when it 17 is held to be barred by limitation. From the mere fact that such an appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the Court. 17. To the same effect is the law laid down by the judgment of this Court in the case of Tirupati Balaji Developers (P) Ltd. v. State of Bihar & Others reported in (2004) 5 SCC 1, in which it has been held that an appeal does not cease to be an appeal though irregular and incompetent.\" 11. In view of the aforestated legal position, there remains no shadow of doubt that appeal could be said to be pending, even if the delay occurred in filing the same was not condoned and even if it was allegedly irregular or incompetent. In the instant case therefore also, the Respondent could not have rejected the Declaration Form of the Petitioner filed under the said Act merely on the ground that the Appeal was not valid or competent, as the delay occurred in filing the Appeal was not condoned by the Appellate Authority. In the opinion of the Court, the Respondent had to only take into consideration, as to whether, the Petitioner had filed an Appeal, and the same was pending on the 'specified date' i.e. 31.1.2020. It was not for the Respondent to decide, as to whether, such Appeal was irregular or incompetent or invalid in the eye of law.\" 30. Ultimately, the Hon’ble Apex Court while making a reference to the Tirupati Balaji Developers (P) Ltd. Vs. State of Bihar and others, as reported in (2004) 5 SCC 1, it has held that the interpretation to a law has to be given to the term which had been specified on a given date, which in the instant case would be as given under Section 2 (I) (n) of the Act, has to be considered irrespective of the pendency of an appeal, along with the delay condonation application for seeking a declaration within the parameters of Section 3 and 4 of the Act of 2020, because the implications of the delay, yet falls for consideration within the domain of consideration of the appellate authority, before whom the appeal under Section 249 (2) of the Act is pending consideration. 31. The learned counsel for the petitioner had made reference to yet another judgment of the Division Bench rendered in Tushar 18 Agro Chemicals Vs. The Principal Commissioner of Income Tax, and particularly, he has drawn the attention of this Court to para 5 of the said judgment; which yet again was dealing with the issue, as to how the term “specified date” which is provided under the Act of 2020, as to be 31st January, 2020, has to be interpreted for the purposes of deriving the benefit of Section 3 and 4 of the Act of 2020. The learned counsel for the petitioner had made reference to para 5, 6 and 7 of the said judgment, which is extracted hereunder :- 5. The learned Senior Advocate Mr. Tushar Hemani appearing with learned Advocate Ms. Vaibhavi K. Parikh for the Petitioner, taking the Court to the Scheme of the said Act, more particularly, the definition of an “Appellant” contained in Section 2(i)(a), submitted that since the Appeal of the Petitioner was pending before the Appellate Authority on the ‘specified date’, i.e. 31.1.2020, the Petitioner was an ‘Appellant’ as defined under the said Act, and was eligible to file the Declaration. According to him, the same has been wrongly rejected on the extraneous ground that there was no reply received from CIT (Appeals), as to whether, any order of condonation of delay was passed in the said Appeal or not. Learned Senior Advocate Mr. Hemani has placed reliance on the decision of the Supreme Court in case of Commissioner of Income Tax v. Shatrusailya Digvijaysingh Jadeja – [2005] 147 Taxman 566 (SC) as also on the unreported decision of the Delhi High Court in case of Shyam Sunder Sethi v. Pr. Commissioner of Income Tax -10 & Ors. passed in W.P. (C) 2291/2021 and CM Appl. 6677/2021, to submit that the Declaration of the Appellant could not have been rejected by the Respondent Authority when the Appeal was pending, even if the delay was not condoned by the Appellate Forum. He also submitted that there is no practice of registering the application seeking condonation of delay separately before the Appellate Forum. 6. However, the learned Senior Standing Counsel Mrs. Mauna M. Bhatt for the Respondent submitted that since the delay occurred in filing the Appeal was not condoned by the Appellate Authority, it could not be said that the valid Appeal was pending before the Appellate Authority, nor the Petitioner could be treated as an ‘Appellant’ within the meaning of Section 2(i)(a) of the said Act. 7. Before adverting to the submissions made by the learned Advocates for the parties, it would be germane to reproduce the definition of the ‘Appellant’ as contained in Section 2(i)(a) of the said Act as well as the definition of the ‘specified date’ as contained in Section 2(i)(n) thereof: 19 “2. (1) In this Act, unless the context otherwise requires,— (a)\"appellant\" means (i) a person in whose case an appeal or a writ petition or special leave petition has been filed either by him or by the income-tax authority or by both, before an appellate forum and such appeal or petition is pending as on the specified date; (ii) a person in whose case an order has been passed by the Assessing Officer, or an order has been passed by the Commissioner (Appeals) or the Income Tax Appellate Tribunal in an appeal, or by the High Court in a writ petition, on or before the specified date, and the time for filing any appeal or special leave petition against such order by that person has not expired as on that date; (iii) a person who has filed his objections before the Dispute Resolution Panel under section 144C of the Income-tax Act, 1961 (43 of 1961) and the Dispute Resolution Panel has not issued any direction on or before the specified date; (iv) a person in whose case the Dispute Resolution Panel has issued direction under sub-section (5) of section 144C of the Income-tax Act and the Assessing Officer has not passed any order under subsection (13) of that section on or before the specified date; (v) a person who has filed an application for revision under section 264 of the Income-tax Act and such application is pending as on the specified date;\" [Explanation.—For the removal of doubts, it is hereby clarified that the expression \"appellant\" shall not include and shall be deemed never to have been included a person in whose case a writ petition or special leave petition or any other proceeding has been filed either by him or by the income-tax authority or by both before an appellate forum, arising out of an order of the Settlement Commission under Chapter XIX-A of the Income-tax Act, and such petition or appeal is either pending or is disposed of.] 32. In this judgment of the Division Bench, too is rather foundationed on the judgment of the Commissioner Income Tax Vs. Shatrusailay Digvijaysingh Jadeja (Supra), where yet again the reliance has been placed to para 13, 15 and 17 of the said judgment and the principle proposition as it has been laid down in para 11 of the said judgment, which is extracted hereunder :- 20 “11. In view of the aforestated legal position, there remains no shadow of doubt that appeal could be said to be pending, even if the delay occurred in filing the same was not condoned and even if it was allegedly irregular or incompetent. In the instant case therefore also, the Respondent could not have rejected the Declaration Form of the Petitioner filed under the said Act merely on the ground that the Appeal was not valid or competent, as the delay occurred in filing the Appeal was not condoned by the Appellate Authority. In the opinion of the Court, the Respondent had to only take into consideration, as to whether, the Petitioner had filed an Appeal, and the same was pending on the ‘specified date’ i.e. 31.1.2020. It was not for the Respondent to decide, as to whether, such Appeal was irregular or incompetent or invalid in the eye of law” 33. In the said judgment, it has held that the respondent could not have rejected the request for declaration of the petitioner which has been filed under the Act of 2020, merely on the ground that the appeal, which was preferred under Section 249 (2) of the Income Tax Act, was not a competent appeal, because of the fact that the delay condonation application was pending consideration. The said judgment too has laid down that merely because of a pendency of an appeal along with the delay condonation application, it would fall to be within the principles laid down under the terms ‘specified date’ as it happens to be in the instant case because, in fact, the appeal of the petitioner under Section 249 (2) of the Income Tax Act, was pending consideration at the time, when the Act was enforced w.e.f. 17.03.2020, and hence, the declaration, which was sought to be made by the petitioner under the Act of 2020, ought to have been rationally considered by the Court, instead of dismissing the same on the pretext that the appeal, which was filed by the appellant, was since preferred along with the delay condonation application, it may not be treated as to be a pending appeal as contemplated under Section 2 (1) (a) (i) of 21 the Act, which would be held to be a wrong interpretation, given based on the legal principles as discussed above, hence, the judgment impugned is apparently faulted. 34. In view of the aforesaid principles and a consistent preposition of law, which had laid down by the Hon’ble Apex Court, as well as the Division Bench of Gujarat High Court, I am of the view that the pendency of a case or an appeal or a petition, as provided under Section 2 of the Act of 2020, has to be rationally considered to be pending, irrespective even if the appeal is pending along with the delay condonation application, and I am also in league and in agreement with the opinion expressed by the Division Bench that the Gujarat High Court, while dealing with such type of contingency or a situation as it cannot enlarge, the scope by widening its determination of consideration of an appellate jurisdiction by barging into its jurisdiction, to determine the question; as to whether at all the appeal itself was pending consideration at the time when, it was instituted when the Act was enforced w.e.f. 17th March, 2020. 35. So far the argument of the learned counsel for the respondents in the light of the provisions contained under Section 2 (1) (a) (i) is concerned, I am of the view that for the reasons already given, the said provision would not be attracted in the present case, for the reason being that the said exception, which has been carved out was only on those cases, where the Assessing Officer or an order, which has been passed by the Commissioner Appeals or the Income Tax Appellate Tribunal; in an appeal and the appeal or revision was not pending at the relevant time, but since, in the instant case, no such situation has arrived at because the appeal itself was pending consideration since 2017, along with the delay condonation application, the provisions of (ii) of Section 2 (1) (a) of the Act, would not be applicable. 22 36. In that view of the matter and for the reasons based on the principles consistently assigned by the law Courts, as already referred above, the Writ Petitions are allowed. The matter is remitted back to respondent No.1 to reconsider the application of declaration under Sections 3 and 4 of the Act of 2020 of the petitioner afresh exclusively on its own merits. (Sharad Kumar Sharma, J.) 27.09.2021 Shiv "