SHREE COAL COMPANY vs. PRINCIPAL COMMISSIONER OF INCOME TAX

This petition is filed seeking quashing of order dated 31.03.2021 rejecting the application of the petitioner filed under the Direct Tax Vivad Se Vishwas Scheme, 2020 (for short ‘the Scheme’).

The brief facts are that the petitioner filed return for the Assessment Year 2011-12. The proceedings initiated under Section 147/148 of the Income Tax Act, 1961 (for short ‘the Act’) culminated in an ex-parte order dated 23.11.2018. There is a dispute with regard to the date of service of the re-assessment order.

As per the case set up by the petitioner, on gaining knowledge of the ex-parte order, the certified copy of order was obtained and appeal filed before the Commissioner of Income-Tax (Appeals) (for short ‘CIT(A)’), on 07.01.2021 along with the application for condonation of delay. The appeal and the application are pending till date. The impugned order was passed on the ground that on the cut-off date of the Scheme i.e. 31.01.2020, no appeal of the petitioner was pending and the case was not covered under the Scheme.

Learned counsel for the petitioner submits that the issue with regard to service of the assessment order is subject matter of appeal before the CIT(A). The impugned order was passed without waiting for the decision of the application/appeal and without going into the factum as to when the order was served and whether the period of limitation for filing of an appeal had expired on 31.01.2020. The reliance is placed upon circulars dated 22.04.2020 and 04.12.2020 to submit that in cases where the limitation to file appeal had not expired till 31.01.2020, such cases were covered under the Scheme.

Learned counsel for the respondent defends the impugned order. Submission is that no appeal was pending on the cut-off date. It is argued that in writ petition Court shall not modify the cut-off date of the Scheme. It is contended that obtaining the certified copy of re- assessment order shall not extend the limitation for filing appeal.

There cannot be a quibble with the proposition that Court cannot modify the cut-off date of the Scheme. The issue involved in the case in hand has to be seen from a different prospective i.e. date from which the limitation to file an appeal shall start.

From perusal of the impugned order, it is forthcoming that the only ground of rejection of the application is that no appeal was pending

While dealing with the application filed under the Scheme, the Commissioner had not considered the aspect of the date of service of the re-assessment order which has ramification on case of petitioner falling within the ambit of the Scheme. Dealing with date of service of re-assessment order would necessary for determining as to whether Vivad was pending on cut of date and case is covered under the Scheme.

Without commenting as to whether the petitioner was eligible under the Scheme, the petition is disposed of remitting the matter back to the authority concerned to decide the application filed under the Scheme, afresh by passing a speaking order.

The Department, if so advised, may take steps for expeditious disposal of the application pending before the CIT(A) against the re- assessment order. Further, the petitioner shall also be at liberty to make a request to the Chief Commissioner of Income-Tax for expeditious disposal of the application for condonation of delay pending before the CIT(A).

The writ is accordingly disposed of. (ASHUTOSH KUMAR),J (AVNEESH JHINGAN),J Simple Kumawat/Riya/51 Whether Reportable : Yes