9911796707
TMI Blog2002 (11) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer by order dated March 28, 1995, made an assessment and determined the tax liability as also imposed penalty payable by the petitioner for the year 1992-93. The petitioner was not satisfied with the additional tax liability as also the penalty imposed, and hence, filed an appeal under section 249 of the Income-tax Act to the Commissioner (Appeals). This appeal came to be dismissed by order dated November 30, 1995, resulting in upholding of the assessment order in its entirety passed by the Assessing Officer. The petitioner then not being satisfied with the order of the Commissioner of Income-tax (Appeals) filed further second appeal under section 253 ibid to the Appellate Tribunal on December 26, 1998, i.e., almost after three years of passing of an order by the Commissioner of Income-tax (Appeals). By that time, naturally it had become barred by limitation. On September 1, 1998, a Scheme called the Kar Vivad Samadhan Scheme, 1998 (hereinafter for brevity called "the Scheme"), was brought into force by the Finance (No. 2) Act, 1998. In terms of the scheme, the assessee was entitled to get the benefit in payment of tax and penalty provided they fulfilled certain conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d February 26, 1999, and December 7, 2001, which resulted in rejection of the declaration filed by the petitioner under the Scheme in the first place contended that the reasoning that led to rejection of the petitioner's declaration by respondent No. 1 itself was factually and/or legally faulty. In the second place, learned counsel contended that it cannot be disputed as a fact that on the date (December 31, 1998) when the petitioner filed a declaration under the Scheme, the appeal filed by the petitioner on December 26, 1998, was pending before the Tribunal thereby entitling the petitioner to take benefit of the scheme. In the third place, learned counsel contended that even assuming that the appeal was barred by time on the date of its filing, the delay having been actually condoned by the Tribunal by order dated January 25, 1999 (though subsequent to filing of declaration), the same shall relate back to the date of filing of the appeal treating the appeal to have been filed in time entitling the petitioner to claim benefit of the Scheme. In the fourth place, learned counsel contended that in order to see whether the declaration is in accordance with the requirement of the Scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is necessary for the assessee to show as a fact that on the date of filing the declaration under the Scheme an appeal, or reference, or writ was "admitted" for final hearing and was "pending" before any appellate authority, or the High Court, or the Supreme Court as the case may be. It is only then that the assessee becomes entitled to invoke the provisions of the Scheme and apply by submitting the declaration for taking its benefit. The question, therefore, that arises for consideration is, what is the meaning of the words "is admitted and pending" used in section 95(i)(c) ibid? and, secondly, whether in the facts of this case any appeal was pending before the Tribunal so as to enable the petitioner to take benefit of the Scheme? The submission of learned counsel for the petitioner was that the petitioner in fact having filed an appeal before the Appellate Tribunal on December 26, 1998, and thereafter submitted a declaration pursuant to the Scheme on December 31, 1998, had become entitled to take benefit of the Scheme. Learned counsel urged that this being an admitted position, it ought to have been held that the appeal, was in fact pending on the date when the declaration wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal condoned the delay in filing the appeal though subsequent to filing a declaration on February 11, 2000, hence, it relates back to the date of filing of appeal, i.e., on December 26, 1998, so as to hold the appeal to be valid and pending on December 31, 1998, i.e., the date of filing declaration, has no merit for several reasons. Firstly, it is not in dispute that the appeal when filed on December 26, 1998, was barred by limitation. Secondly, the delay had not been condoned by the Tribunal either on December 26, 1998, or before December 31, 1998, i.e., prior to the filing of declaration, thirdly, even assuming that the appeal had been filed within the limitation on December 26, 1998, even then it was of no consequence for the reason that it was only a case of filing of an appeal but it was not "admitted" for hearing. I have already held supra, that mere filing of an appeal whether within time or barred by time, is of no significance. In order to take benefit of the Scheme, the assessee is required to prove that his appeal was actually "admitted" by the appellate authority prior to the submission of the declaration and, secondly, what was pending before the appellate author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not so in so far as it relates to appeals, writs and references else, the Legislature would not have carved out revision separately but would have kept it in the same category of appeal, writ and reference, or vice versa, i.e., placing the appeal along with revision, rather than with writs/references. In other words, nothing prevented the Legislature to include appeal along with revision instead of keeping it along with writ and reference while drafting section 95(i)(c). In such eventuality the submission of learned counsel for the petitioner would have had some force. In that situation, the words "admitted and pending" would have had its application to writs and references whereas, the word "pending" would have had its application to appeal and revision, such is not the case here. Equally untenable was the submission of learned counsel for the petitioner when he urged that the Appellate Tribunal's Rules do not provide for any procedure for admission of appeal. Mere perusal of elaborate rules read with section 253(5) of the Income-tax Act would go to show that before the appeal is placed for hearing the Registrar of the Tribunal is empowered to even return the defective app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is necessary for the Commissioner while examining the declaration filed under the Scheme to ensure and record his finding as to whether it is in accordance with the requirements of the scheme or not. Obviously, therefore, section 95(i)(c) being a part of the Scheme, it is equally obligatory on the part of the Commissioner to examine as to whether the assessee has fulfilled the requirement of section 95(i)(c) or not. This includes the twin requirements as to whether any appeal or writ or reference as the case may be, is "pending" before the appellate authority, the High Court or the Supreme Court and, secondly, whether it is "admitted" by the appellate authority, if it is an appeal pending before the Commissioner of Income-tax (Appeals), or the Appellate Tribunal, or the High Court, if it is a reference under section 256(1) or (2) of the Income-tax Act, or writ under articles 226/227 of the Constitution of India, or special leave petition and/or civil appeal under article 136, or writ under article 32 of the Constitution of India before the Supreme Court. So far as revision under the Income-tax Act is concerned, the Commissioner is only required to see whether it is pending on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the procedure prescribed and evolved, this court cannot ignore the use of expression "admitted" in section 95(i)(c) and has to give due weightage to the said word while interpreting the said section. Coming to the facts of the case, it is not in dispute that the appeal filed by the petitioner on December 26, 1998, before the Tribunal was not an "admitted" appeal as on December 31, 1998, i.e., the date on which the petitioner submitted the declaration but it was only an appeal pending hence, it was hit by section 95(i)(c) of the Scheme resulting in its rejection as not being in conformity with the requirement of the Scheme. In other words, the declaration did not satisfy the requirement of section 95(i)(c) ibid and the Scheme had no application to the declaration submitted by the petitioner. Accordingly and in view of the aforesaid discussion, I am of the considered opinion that the view taken by the Commissioner of Income-tax, respondent No. 1, that no appeal was pending on the date of submission of declaration in terms of section 95(i)(c) ibid was legal and proper. It deserves to be upheld. It is, accordingly, upheld. As a consequence, the petition fails and is dismissed. N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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