https://www.taxtmi.com/css/info/rss_sitemap/rss_feed.css?v=1746094055 https://www.taxtmi.com Business/Tax/Law/GST/India/Taxation/Policies/Legal/Corporate Tax/Personal Tax/Vat Law/Legal Information/Tax Information/Legal Services/Tax Services Tax Management India. Com / MS Knowledge Processing Pvt. Ltd. All rights reserved. One stop solution for Direct Taxes and Indirect Taxes https://www.taxtmi.com/caselaws?id=762121 https://www.taxtmi.com/caselaws?id=762121 Benefit of Direct Tax Vivad Se Vishwas Act, 2020 - Review petition as a pending appeal under DTVSV Act - scheme was intended to give quietus to the tax legislation and collect the disputed taxes by granting waiver of penalty and interest - Applicability of CBDT circulars and clarifications - whether the case of the petitioner would fall within the four corners of Section 2(1)(j). HELD THAT:- Admittedly, as on the cutoff date, no Appeal, Writ Petition or Special Leave Petition was pending before the Appellate Forum. Petitioner has drawn our attention to Clarification dated 22.04.2020, issued by the Central Board of Direct Taxes. As per response to Question-1, the proceedings initiated by the declarant by giving any notice for arbitration, conciliation or mediation are covered under the Act. Response to Question-2 clarifies that the assessee whose case is pending in arbitration, is eligible to apply for settlement under Vivad Se Vishwas , even if no appeal is pending. Reply to Question No. 61 provides that even if the Miscellaneous Application [ MA ] in respect of an appeal which was dismissed in limine was pending on before 31st January 2020, such MA is eligible. As apparent from the CBDT Circulars that pendency of arbitration proceedings and miscellaneous applications in certain cases, as on cutoff date would meet the requirement of Section 2(1)(j), even though no Appeal, Writ Petition or Special Leave Petition may be pending in any Appellate Forum in terms of Section 2(1)(j). It is well settled law that Department is bound by the circulars/instructions and has to comply with the same. The Hon ble Supreme Court has held in the case of Paper Products Ltd. [ 1999 (8) TMI 70 - SUPREME COURT] that circulars/instructions issued by CBE C are binding on the departmental authorities. They cannot take contrary stand and department cannot repudiate a circular on the basis that it was inconsistent with the statutory provision. Thus, the respondent is bound by the circular of CBDT issuing clarification. Even though, the scope of review is limited and statutorily different from an appeal, the jurisdiction of the Court extends to the power to modify, review or recall its own order and that being so, the SLP cannot be said to have attained finality since the review petition was still pending on the cutoff date. Department itself has mellowed down the strict interpretation of Section 2(j) by including the pending arbitration proceedings and miscellaneous applications under the Vivad Se Vishwas Scheme . There is no reason why the pendency of the review petition after the dismissal of the Special Leave Petition should not get covered under Vivad Se Vishwas Scheme . The review petition will also partake the character of pending proceedings and therefore the petitioner should not have been non-suited or treated as ineligible for claiming benefit under DTVSV Act. DTVSV Act, in a sense, provides for a deviation from the strict application of tax laws towards achieving this purpose. If the provision in Section 2(j) and the Board Circular is to be construed in a restrictive manner as is contended by learned counsel for the respondent, the same will run contrary to the scheme of the Act of 2020. We are conscious that review petition has since been dismissed by the Supreme Court but we have to consider the right of the petitioner as on the cutoff date, when admittedly, the review petition was still pending. As on the cutoff date, the possibility of reaching a different conclusion could not have been ruled out. We are therefore unable to persuade ourselves to confine the benefit of the scheme to only such cases where an Appeal, Writ Petition or Special Leave Petition were pending. In our view, petition for review against the orders passed in the SLP would also be covered in the definition of Disputed Tax under Section 2(1)(j), thereby, making them eligible to take benefit of Vivad Se Vishwas Scheme . The remarks/reasons given by the first respondent in the impugned order thereby rejecting the declaration in Form-1 2 filed by the petitioner on 28.01.2021, cannot be sustained, for the said reasons are not in consonance with the scheme of the Act and also do not conform to the intent and purpose of the legislation. Writ petition is allowed and the impugned orderis hereby set aside. The first respondent is directed to accept the revised declaration form filed by the petitioner on 28.01.2021 and process the same in accordance with DTVSV Act, 2020 and pass requisite orders. Case-Laws Income Tax Fri, 22 Nov 2024 00:00:00 +0530