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2021 (5) TMI 368 - DELHI HIGH COURTDirect Tax Vivad Se Vishwas Act, 2020 - Rectification u/s 254 - Challenge to the orders whereby, Forms 1 and 2 filed under the Direct Tax Vivad Se Vishwas Act, 2020 were rejected by the designated authority - Whether, in the given facts and circumstances, it could be said that the revenue's appeal was pending on the specified date (i.e., 31.01.2020) as noticed under the 2020 Act? - Revenue says that there is no mention of an MA, in the 2020 Act - HELD THAT:- A careful perusal of the order dated 22.06.2018 would show that the revenue's appeal was dismissed, at the threshold, based on a mistaken impression, perhaps, given by the departmental representative, that the Tribunal had taken a view against the revenue. As noticed hereinabove by us, on 22.06.2018, on the date, the revenue's appeal was dismissed. the petitioner-assessee was not represented. This obvious error, which was apparent from the record, was corrected by the Tribunal, on 11.05.2020. Therefore, if we were to apply the response given to FAQ no. 61, as contained in the revenue's Circular No. 21 of 2020, dated 04.12.2020, in our opinion, the petitioner-assessee should succeed. A plain reading of the response to FAQ no. 61 would show that it requires fulfilment of two prerequisites for an appeal to be construed as pending on the specified date [i.e., 31.01.2020] as per the provisions of the 2020 Act. i. First, the MA should be pending on the specified date, i.e., 31.01.2020. ii. Second, the said MA should relate to an appeal, which had been dismissed "in limine" before 31.01.2020. Insofar as the first aspect is concerned, there is no dispute that the MA was filed, and was pending on the specified date, i.e., 31.01.2020. As regards the second aspect, in our view, the order of the Tribunal dated 22.06.2020 can only be construed as an order that dismissed the revenue’s appeal in limine. In our opinion, the decision taken to dismiss the revenue’s appeal was based on a preliminary assessment of the facts, i.e., the outcome of the revenue’s appeal preferred with the Tribunal qua the same issues in earlier AYs. There was no discussion on the merits of the case. Therefore, in our view, the petitioner-assessee should succeed on this ground alone. In the given facts and circumstances, the order dated 11.05.2020 would have to be construed, metaphorically, as one breathing life into a dead appeal, in the light of the doctrine of relation back. [See: Commissioner of Income-Tax vs. Haryana Sheet Glass Ltd. [2009 (9) TMI 70 - DELHI HIGH COURT] The order dated 11.05.2020 rectified the Tribunal’s earlier order dated 22.06.2018, as according to the Tribunal, a mistake, apparent on the face of the record, had occurred. The Tribunal, in its operative directions, while recalling the order dated 22.06.2018, not only restored the revenue's appeal but also posted it for a fresh hearing. Therefore, if the doctrine of "relation back" were to be applied, and given its logical application, it would have to be said that the revenue's appeal was pending on the specified date, i.e., 31.01.2020. Conclusion: - We are inclined to allow the prayer made in the writ petition. The impugned orders are set aside.
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