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TMI Blog2021 (9) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... al who derived the income by way of share from partnership firm and other sources. He filed his return of income for the A.Y. 2014-15 declaring his income at Rs. 1,97,435/-. His regular assessment was over after scrutiny under Section 143(3) of the Income Act, whereby his income is determined as Rs. 56,88,350/- and his claim of exemption under Section 54F of the Act has been rejected, which resulted into addition of Rs. 54.90 Lacs (rounded of). 4. Aggrieved by this, he preferred the appeal before the CIT(A) on 12th January, 2017. A letter came to be issued on 28th December, 2017, that his paper appeal was not in accordance with the notification of CBDT no.11 of 2016 dated 1st March, 2016, whereby e-appeal was to be filed and therefore, he was directed to e-file the appeal in new Form-35 on or before 10th January, 2018. 5. It is the case of the petitioner that he has preferred such appeal on 6th January, 2018 vide acknowledgment no.357601781060118. 6. It is the case of the petitioner that during the Union Budget- 2020, the VSV scheme was announced for evolving the mechanism for dispute resolution in respect of pending income tax litigation. The scheme was amended by the Taxation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... site of the department, the declaration of the petitioner has been rejected with the following remarks : "In your case, the AO has reported that "As per Form-35 the demand notice against the assessment order has been served on 17th December, 2016. However, applicant has filed appeal on 6th January, 2018, which is beyond the time limit prescribed for filing appeal before CIT appeal. It has been reported by the order passed for delay in filing of appeal by the assessee. However, till date no reply has been received from the CIT appeal. Further, as per Minutes of Meeting held with CBDT Chairman and Members through Video Conference on 4th January, 2021, it was conveyed that orders disposing condonation applications of the assessee will be passed in all cases within week by CsIT(AU)s. However, no information has been received from NFAC/respective CsIT(AU)s as to whether the delay has been condoned in this case. Under the circumstances, declaration filed is hereby rejected." 8. It appears that a petition came to be preferred before the designated officer on 30th July, 2021, which is pending for disposal. The review of the decision of rejecting the declaration is also moved and it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or appeal is either pending or is disposed of.] 8. As per Section 2(i)(n), "specified date" means the 31st day of January, 2020; 9. In the light of the aforestated provisions, let's examine 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 application for condonation of delay separately at the office of the CIT (Appeals), and the same is heard along with the Appeal itself. Even in the prescribed Form No.35, there was Column No. 15, where the Petitioner - Appellant was required to mention about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Keeping in mind the above object, we have to examine section 95(i)(c) of the Scheme, which was different from 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tands allowed accordingly. Rule is made absolute." 9. In wake of this, in the case of the present petitioner also, the communication displayed at the portal of the department rejecting the declaration of the petitioner by orders dated 23rd February, 2021 and 12th April, 2021 are quashed and set aside. The respondent is directed to accept the declaration under the said Act for the A.Y. 2014-15. Additionally we need to also specify that on account of the non-reply on the part of the CIT(A) and non passing of the order disposing of the condonation application of the assessee, the declaration file has been rejected, as otherwise on the point of law, we have already quashed and set aside such orders of declaration of the respondent. However, we need to particularly make a note as a parting note that the non-availability of the order on the part of any of the authorities can never be the reason for not availing the benefit of any provision or scheme to the citizens. 10. Let the declaration be accepted by the respondent on or before the 27th September, 2021. The payment allowed to be made on or before 30th September, 2021 considering the outer time limit set under the scheme. Any other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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