Allowing the petition the Court held that the benefit of deemed pendency of appeal cannot be confined to an application for condonation filed on or before December 4, 2020, as no significance can be attached to the date of issue of the circular, since, what is required to be considered is the pendency of the appeal with an application for condonation and the admission of the appeal as on the date of filing of declaration. Thus, even after December 4, 2020, if an appeal is filed with an application for condonation of delay and the appeal is admitted by the appellate authority before the date of filing of the declaration, the benefit is to be extended.

On facts the assessee having filed an appeal before the Tribunal with an application for condonation and the Tribunal having heard the matter on February 5, 2021 by condoning the delay, it had to be construed as a “pending” appeal as on the date of filing of declaration on February 8, 2021. As a matter of fact, the Tribunal by order dated February 15, 2021, allowed the appeal of the assessee and remitted the matter back restoring the appeal on the file of Commissioner for fresh adjudication. The natural corollary of the Tribunal accepting the application for condonation was that the appeal before the Tribunal was filed in time, since, such condonation would relate back to the date by which time, the appeal against the order of Commissioner ought to have been filed by the assessee. Thus, an appeal could be stated to be pending before the appellate forum and the assessee would have to be considered as an appellant as defined in section 2(1)(a)(i) of the Act of 2020, and the tax as assessed would have to be considered as “disputed tax”, as defined under section 2(1)(j)(B) of the Act of 2020. Alternatively, since the last date for filing declaration had been extended up to March 31, 2021 and the Tribunal, having found cogent reasons to condone the delay and allowed the appeal filed by the assessee and remitted the matter back to the Commissioner by its order dated February 15, 2021, that would automatically revive and restore the appeal, which was dismissed by the Commissioner by his order dated September 18, 2019. Thus, by order of the Tribunal, dated February 15, 2021, the appeal of the assessee before of the Commissioner filed on February 19, 2019 would stand revived, and such restoring of appeal related back to the original date of filing, which was within the “specified date” as per the Act of 2020. Thus, the declaration submitted by the assessee on February 8, 2021 or the revised declaration submitted in forms 1 and 2 on March 31, 2021 could not be considered as “invalid” and liable for “rejection”. The rejection of declaration was not valid.   Notification No. 21 of 2020, dated December 4, 2020 ([2020] 429 ITR (St.) 1), Notification No. 9 of 2021, dated February 26, 2021 ((2021)432 ITR (St.) 13) up to March 31, 2021.  (AY.2011-12)