9911796707
TMI Blog2023 (12) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... ly with the consent of both the parties. In the present writ petition under Article 226 of the Constitution of India the petitioner seeks to challenge the orders dated 31.03.2021 as also the order dated 15.04.2021 passed by the Designated Authority (Respondent No.1) under the Direct Tax Vivaad se Vishwas Act, 2020 (hereinafter referred to as "DTVSV Act, 2020 or 'Scheme') whereby the said authority has rejected the declaration filed by the deceased assessee Smt. Sumitra Raje Dalvi on the ground that the condition regarding pendency of appeal as on 31.01.2020 is not satisfied. 2. The brief facts of the case are that the petitioner is the son of Smt. Sumitra Raje Dalvi and the same has been filed in the capacity as her legal heir. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing appeal has not expired on that day ie. 31.01.2020. Thereafter, a clarificatory Circular No. 21 of 2020 dated 04.12.2020 was issued by the Central Board of Direct Taxes clarifying that in all the cases where the limitation for filing appeals had expired between the period from 01.04.2019 to 31.01.2020 but appeals have been filed alongwith the application for condonation of delay which were pending before the issuance of the said circular dated 04.12.2020 would become eligible to file declaration under the scheme, subject to the condition that the delay has been condoned by the Appellate Authority prior to filing of such declaration. 4. Admittedly, the case of the petitioner is covered by the above clarification since the limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner. (i) That the appeal filed before the appellante forum should have been pending; (ii) That the factum of the pendency of the appeal should have obtained on " specified date" i.e. 31.01.2020. 8. Learned counsel further submitted that the appeal was filed by the petitioner on 23.11.2020 (Annexure P/5) including an application for condonation of delay in preferring the appeal shows that the petitioner fulfilled the necessary prerequisites required for processing the claim under the provisions of 2020 Act. He further stated that as per FAQ No.59 which is the part of clarificatory circular dated 04.12.2020 is erroneous as it takes into account aspects which are beyond the scope of provisions of 2020 Act. In as much as the conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bombay reported in AIR 1954 SC 73, the Supreme Court has held that "whether an appeal is valid, competent or admitted 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". 13. 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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income Tax, W.B., (1999) 4 SCC 599 while interpreting Section 119 of the Act, 1961 has held as under:- "9. xxx xxx xxx Under sub-section (2) of Section 119, without prejudice to the generality of the Board's power set out in sub-section (1), a specific power is given to the Board for the purpose of proper and efficient management of the work of assessment and collection of revenue to issue from time to time general or special orders in respect of any class of incomes or class of cases setting forth directions or instructions, not being prejudicial to assessees, as the guidelines, principles or procedures to be followed in the work relating to assessment. Such instructions may be by way of relaxation of any of the provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
