Yes. 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)

However, in L. Shobanraj v  Dy.CIT ( 2003) 260 ITR 155 (Karn) (HC) DCIT v. H.V. Shantharam (2003) 260 ITR 156 (Karn)(HC) The Hon’ble Karnataka High Court has taken a view that an appeal u/s. 260A lies against an order u/s. 254(2) of the Act on a substantial question of law.  

If the Application is pending as on the specified date, the assessee can opt for the Scheme 

It may be desirable to Board clarify the issue.

1. In  CIT v. Shatrusailya Digvijaysingh Jadeja (2005) 277 ITR 435/ 147 Taxman 566/ 197 CTR 590 (SC)  rendered in the context of similar provisions of KVSS, 1998, referring the judgement In the case of Dr. Mrs. Renuka Datla v. CIT (2003) 259 ITR 258 (SC)  has held on interpretation of section 95(i)(c) that if the appeal or revision is pending on the date of the filing of the declaration under section 88 of the Scheme, it is not for the DA to hold that the appeal/revision was 'sham', 'ineffective' or 'infructuous'. 
2. In the case of Raja Kulkarni v. State of Bombay AIR 1954 SC 73, the Supreme Court laid down that when a section contemplates pendency of an appeal, what is required for its application is that an appeal should be pending and in such a case there is no need to introduce the qualification that it should be valid or competent. Whether an appeal is valid or competent is a question entirely for the Appellate Court before whom the appeal is filed to decide and such 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.  Accordingly the court held that for the afore stated reasons, orders of the designated authority rejecting the declarations filed by the assessee were to be quashed. No infirmity, to that extent, was found in the impugned judgment of the High Court. The appeal was to be dismissed accordingly. 
3. In Tirupati Balaji Developers (P.) Ltd. v. State of Bihar [2004] 5 SCC 1, in which it has been held that an appeal does not cease to be an appeal though irregular and incompetent. 

4. It may be desirable to file  an application for condonation of delay and get the matter fixed only for condonation of delay. Second set of clarification is awaited from the Government where this aspect may be specifically dealt with.  One may also refer  Awantika Pratp Sinh  Morarji  v  Ashwin Kumar (CIT)  WP NO 1691 of 2005  9 -07 -2014 (Bom) (HC ) (UR)  delaing with KVSS , directed the deisgnated the authority to  grant benefit of the schme , when the delay was condoned by the Appellate Tribunal 

The idea of concession to departmental appeal is a policy decision.  It is for the legislature to frame the policy .   

1. If the quantum appeal and corresponding penalty appeal if appeal, if any, can be settled by paying 100% of disputed tax. If penalty is not levied, it cannot be levied in future due to section 6 of the Act. You may also refer to Circular no.7 of 2020, dated 04-03-2020. 

2. In  CIT v. Shatrusailya Digvijaysingh Jadeja (2005) 277 ITR 435/ 147 Taxman 566/ 197 CTR 590 (SC)  rendered in the context of similar provisions of KVSS, 1998, referring the judgement In the case of Dr. Mrs. Renuka Datla v. CIT (2003) 259 ITR 258 (SC)  has held on interpretation of section 95(i)(c) that if the appeal or revision is pending on the date of the filing of the declaration under section 88 of the Scheme, it is not for the DA to hold that the appeal/revision was 'sham', 'ineffective' or 'infructuous'. 
3. In the case of Raja Kulkarni v. State of Bombay AIR 1954 SC 73, the Supreme Court laid down that when a section contemplates pendency of an appeal, what is required for its application is that an appeal should be pending and in such a case there is no need to introduce the qualification that it should be valid or competent. Whether an appeal is valid or competent is a question entirely for the Appellate Court before whom the appeal is filed to decide and such 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.  Accordingly the court held that for the afore stated reasons, orders of the designated authority rejecting the declarations filed by the assessee were to be quashed. No infirmity, to that extent, was found in the impugned judgment of the High Court. The appeal was to be dismissed accordingly. 
4. In Tirupati Balaji Developers (P.) Ltd. v. State of Bihar [2004] 5 SCC 1, in which it has been held that an appeal does not cease to be an appeal though irregular and incompetent. 

5. It may be desirable to file application for condonation of delay and get the matter fixed only for condonation of delay. Second set of clarification is awaited from the Government where this aspect may be specifically dealt with. 
6. In Jehangir H.C . Jehangir v ITO ( 2015) 229 Taxman 392 ( Bom) (HC)  held that  issue specifically taken before the AO could not be refused  to be considered by Tribunal merely because the CIT (A)  did not have any view on it . Order of Tribunal was set aside.  Accordingly, the Querist can avail the benefit of VSVA. In respect of all the issues pending before the Tribunal In  All Cargo Global Logistics Ltd. v. Dy. CIT (2012) 137 ITD 26 / 72 DTR 1 / 146 TTJ 657 / 16 ITR 38 (SB)(Mum.)(Trib.)   the SB held that , a pure question of law arises for which facts are on record of the authorities below , the question should be allowed to be raised if it is necessary to assessee the correct tax liability . Revenue has challenged the order of Special Bench before the High Court  on other grounds and not on the issue of admission of additional grounds. CIT v. All Cargo Global Logistics Ltd. (2015) 374 ITR 645 / 120 DTR 89/279 CTR 389 / 232 Taxman 270 (Bom.)(HC) 
7. Accordingly the assessee can avail the benefit of the scheme in respect of entire appeal which is pending before the ITAT .     

Please refer  Circular No 9 of 2020 dt 22-04 2020  which reads as under .  Q. no 14.   Whether assessee can avail of the Vivad se Vishwas for some of the issues  and not accept other issues? 

Ans : Refer to answer to question no 11.  Picking and choosing issues for settlement of an appeal is not allowed. With respect to one order, the appellant must chose to settle all issues and then only he would be eligible to file declaration.

Answer: You can go under the Scheme for the ground not decided in your favour. 

Please refer Circular No 7/ 2020  dt 4-03 2020  https://www.incometaxindia.gov.in/communications/circular/circular_no_7_2020.pdf    Q. no 36 . Which reads as under ; Q. 36 : In a case ITAT has passed order giving relief on two issaes and confirming three issues. Time to file appeal has not expired as on specified date. The taxpayer wishes to file declaration for the three issues which have gone against him. What about the other two issues as the taxpayer is not sure if the department will file appeal or not? 

Ans : The Vivad se Vishwas allow declaration to be filed even when time to file appeal has not expired considering them to be a deemed appeal. Vivad se Vishwas also envisages option to assessee to file declaration for only his appeal or declaration for department appeal or declaration for both. Thus, in a given situation the appellant has a choice, he can only settle his deemed appeal on three issues, or he can settle department deemed appeal on two issues or he can settle both. If he decides to settle only his deemed appeal, then department would be free to file appeal on the two issues (where the assessee has got relief) as per  the extant procedure laid down and directions issued by the CBDT. 

Accordingly the querist can avail the benefit of the scheme .

The querist may have  to settle the addition made by the AO . Cost will be as per the assessment order. It may be desirable to the  querist to contest the appeal  rather than  opting the  VSV Scheme. 

From our  understanding of your query, there is a delay in filing of the appeal & there is a condonation of delay application before the CIT(A). It is desired that  the querist may request to CIT (A) to take up the application for condonation of delay . If the delay is condoned , the querist will be eligible . In case the application for condonation of application is rejected . One can file an appeal before the Tribunal . The Tribunal can take up your appeal  within 48 hours of the filing of an appeal . Once the appeal is condoned  , the querist will be  eligible for making application for VVS .

In  CIT v. Shatrusailya Digvijaysingh Jadeja (2005) 277 ITR 435/ 147 Taxman 566/ 197 CTR 590 (SC)  rendered in the context of similar provisions of KVSS, 1998, referring the judgement In the case of Dr. Mrs. Renuka Datla v. CIT (2003) 259 ITR 258 (SC)  has held on interpretation of section 95(i)(c) that if the appeal or revision is pending on the date of the filing of the declaration under section 88 of the Scheme, it is not for the DA to hold that the appeal/revision was 'sham', 'ineffective' or 'infructuous'. 

In the case of Raja Kulkarni v. State of Bombay AIR 1954 SC 73, the Supreme Court laid down that when a section contemplates pendency of an appeal, what is required for its application is that an appeal should be pending and in such a case there is no need to introduce the qualification that it should be valid or competent. Whether an appeal is valid or competent is a question entirely for the Appellate Court before whom the appeal is filed to decide and such 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. Accordingly the court held that for the afore stated reasons, orders of the designated authority rejecting the declarations filed by the assessee were to be quashed. No infirmity, to that extent, was found in the impugned judgment of the High Court. The appeal was to be dismissed accordingly. 

In Tirupati Balaji Developers (P.) Ltd. v. State of Bihar [2004] 5 SCC 1, in which it has been held that an appeal does not cease to be an appeal though irregular and incompetent.

This issue  was also raised a  a meeting held on  6-4-2020 by the ITAT , with the Chairman CBDT. We hope some clarification may be issued . 

From our understanding if your query, there is a delay on the part of the department to issue certificate i.e. Form 3 within a period of 15 days as per section 5(1) of VSVA. Given the current pandemic situation, it would be rational to assume a delay in the functioning of Offices. 

Rest assured, the declaration will not be deemed to be rejected or never been filed as it will be protected under the decision of the Supreme Court in the case of Suo Motu Writ Petition (Civil) No(s).3/2020 dated March 23, 2020 wherein it has been held that to ease the difficulties faced by the litigants and their lawyers across the country in filing their petition/ applications/ suits/ appeals, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th  March 2020 till further order/s to be passed by this Court in present proceedings.

If the application is rejected ,it is against the principle of natural justice . One can challenge the such order by filing writ petition. In C.B. Gautam v .UOI (1993) 199 ITR 530 (SC) the Court held that , though the provisions of Chapter XXC did not provide an opportunity to be heard to be given before order of purchase as also do not provide to disclose reasons recorded to affected parties on challenges as to being violative of Article 14 of the Constitution of India . In  Dhakeswari Cotton Mills Ltd v. CIT ( 1954) (SC ) ,where the principle of natural justice were violated , the Supreme Court set aside the assessment . 

At  a meeting held on  6-4-2020 by the ITAT , with the Chairman CBDT a specific request was made not to reject the application without giving an opportunity of hearing heard.      

Yes. The assessee will be considered to be a declarant as per section 2(1)(a) (ii) of VSVA. Therefore the assesssee can opt for the Scheme.