As  per section 254(2) . the rectification application has to be filed within six months  from the end of the month in which the order was passed.  Six months ends on November 2019 being Saturday and 1.12.2019 being Sunday  , the rectification application filed by the assessee is with in period of limitation .    we understand, a miscellaneous application was filed  within the prescribed limitation period and pending for disposal as on 31-01 2020  In  Liladhar T. Khushlani v. Commissioner of Customs  (TA No. 915 of 2016, dt. 25.01.2017)  (Guj) (HC), www.itatonline.org held that for purposes of filing a rectification application, the period of limitation of six months commences from the date of receipt of the order sought to be rectified by the assessee and not from the date of passing of the order. followed ratio in  D. Saibaba v. Bar Council of India AIR 2003 SC 2502. In  Peterplast Synthetics P. Ltd. v. ACIT (2014) 364 ITR 16 (Guj.)(HC) held that for   application for rectification starting point for limitation is actual date of receipt of order of Tribunal. In Jagmohan Gurbakshish Singh v. DCIT  (M. A. No. 42/Chd/2018, dt. 27.04.2018)  (Chd.)(Trib.) www.itatonline.org  The limitation period for filing a Rectification Application has to be computed from the date of “communication” of the order and not from the date of passing the order.   As per section 10 of the General Clauses Act , 1897 , read with section  4 of the Limitation Act, 1963 , enable a person to do what he could  not have done on a holiday on the next working day. Accordingly the Miscellaneous application is with in the period of limitation ( Refer H.H .Raja Harvinder Singh v.S  .Karnail Singh ,AIR 1957 SC 271, Rambir Narhargir Gosai  v. Prabahakar Bhaskar Godhaway & Ors AIR , 1985 Nagpur 300,  Umedsingh Baliram Raghbanshi v .Shankellal Jahankalal & Ors AIR (35) 1948  Nagpur 63 , Flowmore Pvt Ltd v.Keshav Kumar Swarup , AIR 1983 Delhi 143 )

Rectification u/s 254 (2) is continuation of appeal proceedings before the ITAT,   hence one may take the view that even when rectification application is pending it can be construed as pending. let us take an example if rectification is allowed the appeal is restored ,  it relate back the date of filing of an appeal. Hence the assessee can opt for the scheme when the miscellaneous application is pending for final disposal.  One may   have to consider in following cases the Courts have held that order rejecting the application made u/s. 254(2) of the Act is not maintainable. Chem Amit v. ACIT (2005) 272 ITR 397 (Bom.)(HC) , Safari Mercantile Pvt. Ltd. v. ITAT (2016) 386 ITR 4 (Bom.) (HC), CIT v. Singhal Industries (2017) 395 ITR 264 (Raj) (HC), Madhav Marbles & Granites v. ITAT (2012) 65 DTR 217 / 246 CTR 243 / 2012 Tax LR 465 (Raj.)(HC)

It may be desirable to Board clarify the issue.  In case the Competent  authority  is  rejecting the application , the assessee can approach High Court by filing writ petition . 

As we understand, you had an appeal pending on the specified date under VSVA. Pursuant thereto, the CIT dismissed the Appeal in the month of August 2020.

As the appeal is dismissed . The appeal is not pending when you file an application under VSVS hence may not be eligible .  One has to find out whether appeal is dismissed on merits or for not appearing before the office of the CIT (A) on the appointed date . As per the law  even in ex party order the CIT (A) has to decide on merit as held in  CIT (Central) v. Premkumar Arjundas Luthra (HUF) [2016] 240 Taxman 133 (Bom.) (HC), Swati Pawa (Ms.) v. DCIT [2019] 175 ITD 622 (Delhi.) (Trib) and HV Metal ARC (P.) Ltd. v. ACIT [2018] 173 ITD 606 (Delhi) (Trib). It is desirable to file an appeal before the Appellate Tribunal and make an application for early hearing . The Honourbale Tribunal may set aside the appeal to the file of CIT (A) and direct him  to decide on merits . When the matter is set aside it relates back to the date of filing of appeal  and  the assessee can avail the benefit of the scheme .

In case the CIT (A) has decided the matter on merits .It is advisable to file an appeal before the Appellate Tribunal , taking specific  grounds of natural justice and also make an application before the Appellate Tribunal for an early hearing . The Appellate Tribunal may set aside the matter to the file of CIT (A) to give one more opportunity of hearing .    When the appeal is  set aside it relates back to the date of filing of appeal  and  the assessee can avail the benefit of the scheme .

We presume that the in the order u/s 154 the Assessing officer has made further addition in the rectification order .  The assessee may have  to file an  appeal also against the order u/s 154 of the Act.  If the assessee desires to  avail the advantages of the scheme , the appeal can be filed by making an application for condonation of delay  with supporting affidavit explaining  the delay . When the appeal is condoned , the assessee can  settle the amount is dispute  in respect of original appeal as well as appeal under section 154 of the  Act .  Once the appeals are settled  interest charged u/s 234B will also be settled .

One may have  to consider  whether the rectification order passed by the Assessing Officer  is on debatable issue. If the issue is debatable  it may be desirable to file an appeal with condonation of  delay  with supporting affidavit explaining  the delay .The  assessee may have  a fair chance of succeeding in appeal . Once  the appeal is decided in favour of the assessee, consequential demand and interests will also be quashed . 

One may have to provide the proof of payment of taxes, as it is normally done when a demand is raised against the taxpayer. (Zerox copy of challan can be enclosed ) . The payment details can be provided with Form 4. For withdrawal of appeal , the assessee can make an application to the CIT (A) , stating that , the tax in dispute is settled,  the payment is made and the permission may be  granted to withdrawal of appeal . The  letter addressed to CIT (A) to withdrawal of appeal may be sent to the designated authority . 

One has to read the grounds of appeal filed  before the CIT(A) . For an example out of five additions made by the AO in the reassessment proceedings, if the assessee challenges  only two additions the tax in dispute has to be computed in respect of only  in respect of two additions .   If any  excess amount of tax was  paid by the assessee, while computing  the tax in dispute the assessee will get the credit for the excess amount paid and balance only payable as per the VVS when the issue is settled . The answer is giving on the basis of presumption  of  certain facts .

For an attachment to occur, a Certificate has to be received by the TRO from the Ld. Assessing Officer for the recovery of arrears. Pursuant to receiving the certificate, the TRO is required to issue a Notice to the Assessee requiring the assessee to pay the amount specified in the certificate within fifteen days from the date of service of the notice and intimating that in default, steps would be taken to realise the amount under the Second Schedule to the Income tax Act, 1961.

Pursuant thereto, after the period of 15 days, if there is no payment or response or explanation offered by the Assessee; the TRO may proceed to recover the amount by attachment and sale of the defaulter's immovable property only after serving the order of attachment to the assessee/defaulter. The order of attachment shall be proclaimed at some place on or adjacent to the property attached by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and on the notice board of the office of the TRO.

The Hon’ble High Court of Madras in the case of Tax Recovery Officer v. S. Ramakrishnan [2007] 213 CTR 222 (Mad(HC) ) wherein it was held that before attaching property, competent authority is supposed to issue notice under section 226(3)(i) and attachment made without issuing such notice would be invalid. Where no notice was issued and aforesaid procedure was not followed before passing the order of attachment, the order of attachment having been passed in violation of rules of natural justice, was not valid.

Therefore, where an opportunity to show cause was not provided to the assessee, the same can be challenged on the grounds of violation of principles of natural justice  

In Dagny De souza (Smt) v. ITO (2011) 56 DTR 263 / 198 Taxman 205 / 242 CTR 176 (Bom.)(HC) Court held that  if the application for stay of recovery is pending order passed under section 226(3)  without disposing the application was held to be bad in law .

As we understand, you have filed Form 1 & 2 and are awaiting Form 3 from the Department. As these are uncertain times, there might be a delay on the part of the Department as it is not functioning at full capacity. We would advise you or your consultant to approach your Designated Authority as per VSVA. It may be desirable to write to designated Authority, in case  the reply is not received within reasonable time , you may write to Chairman CBDT .   

According to us it may not be possible  to take advantages of the scheme after the appeal is heard and the receipt of the order from the office of the CIT (A). .  When an assessee  file an application under the scheme  before the designated authority , the appeal must be pending . However in case  the appeal is decided by the Commissioner (Appeals) without following the due process of law , the assessee can file an before the Tribunal  taking the grounds of natural justice and without giving a reasonable opportunity . The assessee can also make ann application for an early hearing of appeal . When the appeal is heard the Tribunal may set aside the appeal to the Commissioner (Appeals) . Once the appeal  is set aside , it relates back to the date of the filing of the original appeal  . Accordingly the assessee can avail the benefit of the scheme. 

This question is already answered earlier .  According to us ,  when an appeal is decided against the assessee . The department cannot file an  appeal . The Department can file an appeal against a ground held in favour by the CIT(A), if the tax in dispute is more than 50 lalkhs , as per the Circular of the Board  no 3 of 2018 dt 11-07  -2018 ( 2018) 405 ITR 29 (St)   , unless the case falls with exception clause of the Circular No 3 of 2018  dt 20 -08 -2018 (2018) 407 ITR 4 (St)  (Para 10)  The Tribunal has no power of enhancement please refer Mcorp (P) Ltd v CIT ( 2009) 309 ITR 434 (SC).  According to us the declaration is valid . The assessee may write to the  Appellate Tribunal to serve the grounds of appeal of the department . On reading the grounds  the assessee  may be able to decide whether the departmental appeal is valid or not. If the departmental appeal is in accordance with the law , the assessee  may think of contesting the appeal on merit or may also file a separate application under the scheme to settle the departmental appeal by paying the 50% of tax in dispute . Refer Circular F .No IT (A) 1/2020 -TPL No 9 /2020  dt 22 –4 -2020  www.itatonline .org answer to question No 28   . It may not be possible to file the revised form after the passing and servicing of the order by the Appellate Tribunal 

As we understand, you have filled Form 1 & 2 thereby declaring an amount payable of Rs. 2.27 Crores and thereafter, a rectification order is passed to refund Rs. 2.52 Cr, by virtue of which there is now an amount refundable to the assessee under VSVA. It is advisable to file revised  Form 1 & 2  .  In case the revised form is not accepted , the querist may approach the designated authority .