TMI Blog2022 (11) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... when it is held to be barred by limitation. From the mere fact that such an appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the Court . To the same effect is the law laid down by the judgments of the Supreme Court in the cases of Tirupati Balaji Developers (P) Ltd. v. State of Bihar Ors.[ 2004 (4) TMI 575 - SUPREME COURT] and Commr. of Income Tax, Rajkot Versus Shatrusailya Digvijaysingh Jadeja, [ 2005 (9) TMI 362 - SUPREME COURT] - In the said cases, it has been held that an appeal does not cease to be an appeal though irregular and incompetent. Though Section 10 of the VSV Act gives power to the CBDT to issue directions, yet this Court is of the view that the said Section is similar to Section 119 of the Act, 1961. Consequently, the CBDT under Section 10 of VSV Act cannot issue circulars adverse to the assessee. It is also settled law that when the Supreme Court or High Court declare the law on a question arising for consideration, then the view expressed by the Supreme Court or the High Court has to be given effect to and not the circular issued by the CBDT - Consequently, the FAQ No.59 of Circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The relevant portion of the impugned order dated 23rd January, 2021 is reproduced hereinbelow:- CREDIT IN FORM 3 HAS BEEN GIVEN PROVISIONALLY ON THE BASIS OF OLTAS DATA. AO SHOULD ENSURE CONSUMPTIOIN OF ALL CHALLAS AGAINST CORRECT DEMANDS IMMEDIATELY. In this case penalty u/s 271(1)(c) of Rs.74290830/- was imposed which was confirmed by CIT(A) and appeal against the same is pending in ITAT. In respect of quantum, the AO passed order on 22.12.2016, as per Form-35. It was served on 23.06.2017 and appeal was filed on 24.05.2019, which is late appeal. FAQ 59 does not cover assesssee s case. Therefore, only penalty appeal is being settled on payment of 25% of penalty amount. Form 3 has been issued accordingly. 3. Learned counsel for the petitioner submitted that the respondent No.1 erred in not appreciating that in terms of the Section 2(1)(a)(i) read with Section 2(1)(b) read with Section 2(1)(n) of the VSV Act, the only requirement for being eligible to settle a dispute under the VSV Scheme was that the appeal should be pending before an appellate forum which includes CIT(A) and ITAT. He pointed out that there was no requirement that the appeal should be filed in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22nd July, 2017, along with an application seeking condonation of delay in filing the said appeal. 9. He stated that the petitioner opted for VSV Scheme and filed a declaration under VSV Act, 2020 on 18th December, 2020, to settle the pending disputes before the CIT(A) in quantum appeal and ITAT in penalty appeal. 10. He contended that though the designated authority, in view of the VSV Act, 2020 allowed the settlement of the penalty as the penalty appeal was pending on the prescribed date i.e. on 31st January, 2020, yet the designated authority, in view of FAQ-59 issued by CBDT vide Circular No.21/2020 namely F.NO.IT(A)/1/2020-TPL dated 4th December, 2020, rejected the declaration of the petitioner qua the quantum appeal. The FAQ-59 in CBDT Circular No.21/2020 dated 4th December, 2020 is reproduced hereinbelow:- Q-59. Whether the taxpayer in whose case the time limit for filing of appeal has expired before 31 Jan 2020 but an application for condonation of delay has been filed is eligible? Ans . If the time limit for filing appeal expired during the period from 1st April 2019 to 31 at Jan. 2020 (both dates included in the period), and the application for cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lification that it should be valid or competent. In Raja Kulkarni v. The State of Bombay reported in AIR 1954 SC 73, the Supreme Court has held that whether an appeal is valid or competent is a question entirely for the appellate court before whom the appeal is filed to decide and this determination is possible only after the appeal is heard but there is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent, e.g. when it is held to be barred by limitation. From the mere fact that such an appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the Court . 16. To the same effect is the law laid down by the judgments of the Supreme Court in the cases of Tirupati Balaji Developers (P) Ltd. v. State of Bihar Ors. reported in (2004) 5 SCC 1 and Commr. of Income Tax, Rajkot Versus Shatrusailya Digvijaysingh Jadeja, (2005) 7 SCC 294. In the said cases, it has been held that an appeal does not cease to be an appeal though irregular and incompetent. 17. The Gujarat High Court in Tushar Agro Chemicals vs. The Principal Commissioner of Income Tax-1, 2021 (7) TMI 1267 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvantage under the Act is given the right to forego the advantage when required to wield it in a manner it considers just by relaxing the rigour of the law or in other permissible manner as laid down in Section 119. The power is given for the purpose of just, proper and efficient management of the work of assessment and in public interest. It is a beneficial power given to the Board for proper administration of fiscal law so that undue hardship may not be caused to the assessee and the fiscal laws may be correctly applied. Hard cases which can be properly categorised as belonging to a class, can thus be given the benefit of relaxation of law by issuing circulars binding on the taxing authorities. (emphasis supplied) 20. It is also settled law that when the Supreme Court or High Court declare the law on a question arising for consideration, then the view expressed by the Supreme Court or the High Court has to be given effect to and not the circular issued by the CBDT. The Supreme Court in Commissioner of Central Excise, Bolpur vs. Ratan Melting Wire Industries, (2008) 13 SCC 1 has held as under:- 7. Circulars and instructions issued by the Board are no doub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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