Assessee Eligible to File Declaration Under Vivad Se Vishwas Scheme if ITAT Recalled its Order Dismissing Appeal | HC

Case Details: Atul Roshanlal Gupta vs. Principal Commissioner of Income-tax - [2024] 167 taxmann.com 634 (Gujarat)

Judiciary and Counsel Details

• Bhargav D. Karia & Niral R. Mehta, JJ.
• Tushar Hemani, Sr. Adv. & Ms Vaibhavi K. Parikh, Adv. for the Petitioner. 
• Varun K.Patel, Adv. for the Respondent.

Facts of the Case

Assessee filed its return of income for the relevant assessment year. The Assessing Officer (AO) passed the assessment order by making certain additions to the returned income. Assessee filed an appeal before the CIT(A), which was finally disposed of by CIT(A).

Aggrieved by the order of CIT(A), the assessee preferred an appeal to the Tribunal. The Tribunal dismissed the appeal in limine, i.e., without considering the merits of the case. The assessee then filed a Miscellaneous Application (MA) before the Tribunal to recall the order of dismissal of the appeal. The Tribunal allowed the MA and recalled the order of dismissal of the appeal.

Thereafter, assessee filed an application under the Direct Tax Vivad Se Vishwas (VSV) Scheme for settlement of the dispute. However, the application was rejected by the AO on the ground that no appeal was pending as on the specified date i.e., 31-01-2020, and thus the assessee was not eligible for the scheme.

Aggrieved by the order, the assessee filed a writ petition to the Gujarat High Court.

High Court Held

The High Court held that the assessee had to be an appellant as of the specified date, i.e., 31-01-2020, to file a declaration under the VSV Act. Admittedly, the appeal filed by the assessee was not pending as of the specified date. However, in view of the order passed by the Tribunal recalling the order of dismissal of the appeal, the appeal was restored.

Thus, the assessee’s appeal had to be considered as pending as of the specified date. Therefore, the High Court held that the order of the AO was not tenable and directed the AO to consider and process the declaration filed by the assessee under the provisions of the VSV Act.