TaxTMI 
TaxTMI 
2021 (12) TMI 1138
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....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 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. Co....
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....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. 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 h....
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....viable 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 ....
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....ainst 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[1]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 ....
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....ovided 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 app....
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....ong 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 itsel....
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....ther 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 proce....
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....udgment 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. Commissi....
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.... 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 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 re....
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.... 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 appe....
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.... 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 Petitione....
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....ified 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 u....
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....pellant, 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 w....