TaxTMI 
TaxTMI 
2021 (8) TMI 1263
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....ken up for final hearing. 3. The present Petition filed by the Petitioner - Ritesh Bakuleshbhai Mehta, under Article 226 of the Constitution of India, is directed against the impugned communication dated 26.04.2021 (Annexure- G), rejecting the Declaration filed by the Petitioner under "The Direct Tax Vivad se Vishwas Act, 2020 (hereinafter referred to as "the said Act"). 4. The facts in nutshell giving rise to the present petition are that after first round of litigation upto ITAT, remand proceedings were conducted by the Assessing Officer in case of the petitioner for the block assessment for the years 01.04.1195 to 13.12.2001. The Assessing Officer vide order dated 27.12.2011 framed the assessment for the said period. The petitioner....
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....ellant' 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: "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 befo....
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....xamine as to whether the petitioner could be said to be an "Appellant" within the meaning of Section 2(i)(a) of the said Act or not. In the present Petition, there are certain undisputed facts. It is not disputed that the Appeal filed by the Petitioner electronically on 17.5.2016 against the order of assessment dated 25.2.2016 is pending with the Appellate Authority, though there was delay of 40 days occurred in filing the said Appeal. It is also not disputed that the said delay has not been condoned by the Appellate Authority since the filing of the Appeal. It is stated at the bar by the learned Senior Advocate Mr. Hemani, and not disputed by the learned Senior Standing Counsel Mrs. Mauna Bhatt that there is no practice of registering an a....
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....case. Under the circumstance, declaration filed is hereby rejected." 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 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,....
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....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., whe....