TaxTMI 
TaxTMI 
2008 (7) TMI 542
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.... the application for settlement in respect of assessment cannot be entertained because the petitioner had filed the application under section 264 of the Income-tax Act, 1961 ("the Act") on January 28, 1999. The said revision application under section 264 of the Act was a belated one. Under the KVSS, only a case where a dispute was existing and the case was pending on the date of declaration under the KVSS could be entertained. 2. The facts which are not in dispute are that for the assessment year 1994-95, the petitioner-assessee sought set off of loss suffered in a proprietary business against other income as per return of income filed. However, as the books of account of the proprietary business could not be produced before the Assessing ....
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....issue was no longer res integra, as, in an almost similar set of circumstances, this High Court in the case of Shatrushailya Digvijaysingh Jadeja v. CIT [2003] 259 ITR 149 (Guj) came to the conclusion that there was no distinction between a proceeding which is pending, whether the proceeding has been initiated within a period of limitation, or beyond the period of limitation accompanied by an application seeking condonation of delay. That, the aforesaid view expressed by this High Court has been con-firmed by the apex court in case of CIT v. Shatrusailya Digvijaysingh Jadeja [2005] 277 ITR 435 (SC). 5. As against that, the learned standing counsel appearing on behalf of the respondent-authority submitted that in this case, the assessment o....
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....upreme Court decision in the case of Computwel Systems P. Ltd. v. W. Hasan [2003] 260 ITR 86 (SC). 6. In case of CIT v. Shatrusailya Digvijaysingh Jadeja [2005] 277 ITR 435, the apex court has, while upholding the judgment of this High Court, after analysing the scheme of KVSS observed as under (page 441) : "The basic point which we are required to consider in this case is the meaning of the word 'pending' in section 95(i)(c) of the said Scheme. The object of the Scheme was to make an offer by the Government to settle tax arrears locked in litigation at a substantial discount. It provided that any tax arrears could be settled by declaring them and paying the prescribed amount of tax arrears, and it offered benefits and immunities f....
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.... scheme, will not apply to this case." Furthermore, after referring to two earlier decisions rendered by the Supreme Court, it has been held (page 443) : ". . . 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 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. To the same effect is the law laid down by the judgment of this c....