TMI Blog2023 (4) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) and assessee thus filled miscellaneous application u/s 254(2) what it thought was an error apparent on record which was dismissed by Tribunal. A fresh appeal was filed by the assessee before the Tribunal with an application for condonation of delay which was admitted by tribunal. While the appeal was pending, the Finance Act, 2020 received the assent of the President of India on March 17, 2020. HELD THAT:- There are two ways of looking at the matter. Firstly, the appeal preferred in physical form was pending. The provisions of the 2020 Act do not make any distinction as to the mode in which appeal is preferred as long as it is pending. Therefore, if we were to take this view, according to us, respondent no.1 could not have passed the orders of rejection, as the appeal lodged by the petitioner in physical form had, in a sense, resurfaced with the Tribunal passing an order of remand on 01.04.2019. The order passed by respondent no.3 on merits was rendered otiose, in view of the order of remand passed by the appellate authority i.e., the Tribunal. Appeal was pending since petitioner had attempted a course correction and filed a fresh appeal against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejection orders passed by respondent no.1, which is the designated authority under the Direct Tax Vivad Se Vishwas Act, 2020 [in short, 2020 Act ]. 3. The three rejection orders which have been assailed are dated 31.01.2021, 25.03.2021 and 09.04.2021. The orders are almost identical in their width and scope. 4. However, as is evident on a bare perusal of the said orders, these orders came to be passed on account of declarations made by the petitioner on various dates. 4.1 Thus, insofar as the rejection order dated 31.01.2021 is concerned, a declaration in the prescribed form i.e., Form-1 and Form-2 under the 2020 Act, was made on 21.11.2020. 4.2 Likewise, as regards the rejection order dated 25.03.2021 is concerned, the declaration was filed, as indicated above, on 31.01.2021. 4.3 Similarly, the third declaration was filed by the petitioner, once again, in the prescribed form on 25.03.2021, which was rejected on 09.04.2021. 5. The ground on which the petitioner s declarations were rejected was that on the specified date i.e., 31.01.2020, its appeal was not pending. 6. To appreciate the issue at hand, which is: whether or not the appeal was pending either befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed in the appeal preferred by the petitioner in physical form, and remanded the matter to respondent no.3. 8.2 Pertinently, this order was passed by the Tribunal without the petitioner being represented on the said date. It appears that the petitioner discovered, thereafter, that its grievance could not have been redressed by the remand order dated 01.04.2019 passed by the Tribunal, given the fact that the order which had been set aside was not the order which respondent no.3 had passed on merits. As indicated above, the order on merits was passed by respondent no.3 in the appeal preferred before him via digital mode. 9. This impelled the petitioner to file a Miscellaneous Application (MA) under Section 254(2) of the 1961 Act for correcting, what it thought was an error apparent on record. 9.1 The MA was filed on 30.05.2019. The petitioner sought to bring to the notice of the Tribunal, the inadvertent mistake it had made by appending to its appeal, the order that respondent no.3 had passed in the appeal which had been preferred in physical form- which did not deal with the merits of the petitioner s case. 9.2 For whatever reasons, the Tribunal, took a simplistic view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , albeit, on merits, it refused to entertain the application and dismissed the same via order dated 30.08.2019. 18. The facts, as set forth hereinabove, also reveal that a fresh appeal was filed by the petitioner before the Tribunal on 10.02.2020 along with an application for condonation of delay. The Tribunal, via the detailed order dated 18.12.2020, condoned the delay and admitted the appeal. 19. Given these facts, it was submitted by Mr Sumit Lalchandani, who appears on behalf of the petitioner, that the condonation of delay by the Tribunal via order dated 18.12.2020 would put the petitioner, in a sense, back in point of time, and therefore, contrary to what has been indicated in the orders passed by respondent no.1, the appeal would have to be treated as pending on the specified date. 20. On the other hand, Mr Sanjay Kumar, learned senior standing counsel, who appears on behalf of the respondent/revenue, says that the issue that this Court has to consider is: whether the appeal was pending on the specified date? 20.1 In other words, Mr Kumar says that the order dated 18.12.2020 was passed after the specified date had been crossed and because the petitioner was seeki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submission that once the Tribunal condoned the delay on 18.12.2020, the appeal would be construed as having been instituted on the date it ought to have been lodged. 24.5 In this context, we may also note that the fresh appeal was filed before the 2020 Act had received the assent of the President i.e., on 17.03.2020. Therefore, the bona fides of the petitioner, clearly, cannot be doubted. 24.6 But, as indicated hereinabove, this line of discussion need not be taken further in view of what we have stated hereinabove, which is that the order passed by the Tribunal, on 01.04.2019, gave a fresh lease of life to the appeal which had been preferred by the petitioner in physical mode. 24.7 Perhaps, the purpose of this direction was that respondent no.3 should have passed an order on merits and ought not to have dismissed the appeal only on the ground that it had not been filed in the digital mode. 25. As indicated above, the Tribunal s order dated 30.08.2019 only complicated the matter by refusing to correct the inadvertent error which was committed by the petitioner. 26. Therefore, the question that begs an answer is: should the petitioner suffer on account of an obviou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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