We would wish to answer to question no. ii first, so as to then answer other questions. 

ii) What you seek to settle is Assessee’ appeal before HC and not an appeal filed by department. FAQs no. 7 has clarified that set aside issues can be settled. In such a scenario, since Assessee’s appeal is being settled, 100% would be applicable and not 50%.  

iii) FAQ No. 7 & 27 make clear that with respect to set aside issues, declarant may fill the form as if an appeal is pending before CIT(A). Hence for set aside issue, it should be under section 143(3) r.w.s 254. And for other, as if the appeal is against ITAT order and pending before High Court. 

i) Considering the above two answers, there could be a situation wherein amount is payable and not refundable. Hence you may fill the details of challan paid has to be given in case taxes (either in full/ in part) have already been paid after reducing the refund of tax amount (without interest u/s 244A)  

One may refer : Clarifications on provisions of the Direct Tax Vivad se Vishwas Bill, 2020 - reg. dt 4-03 -2020  issued by CBDT ,Q.No 35 Reads as under ;   Q.No 35 :  If there is substantive addition as well as protective addition in the  case of same assessee for different assessment year, how will that be covered? Similarly if there is substantive addition in case of one assessee and protective addition on same issue in the case  of another assessee, how will that be covered under Vivad se Vishwas? 

Answer: If the substantive addition is eligible to be covered under Vivad se Vishwas, then on settlement of dispute related to substantive addition AO shall pass rectification order deleting the protective addition relating to the same issue in the case of the assessee or in the case of another  assessee.  

Considering the intention of the legislature ,  if the assessee against whom  the order is passed protectively , and the appeal is pending as on 31-01 -2020,  the assessee can avail the benefit of  Vivad se Vishwas Scheme. The order against  whom the substantial addition is made have to be deleted . One may file rectification  application or may point out in appeal proceedings . Normally the appeal relating to substantial addition and protective addition are  always heard together . If the appeals are not fixed together the assessee may have to make an application to fix the appeals together at the time of withdrawal of appeal 

 Ans to FAQ. 25 reads as under ,  “ The rectification order passed by the AO may have an impact on detennination of disputed tax, if there is reduction or increase in the income and tax liability of the assessee as a result of rectification. The disputed tax in such cases would be calculated after giving effect to the rectification order passed, if any.” 

One may make an  application even today and the AO may be requested to rectify the order before the application is filed under the Scheme .  Rectification need not be pending as on 31 -1 -2020 , the appeal must be pending . On the facts the appeal was pending hence the disputed has to be computed after considering the rectification order.

Yes, the assessee has a deemed appeal pending before the ITAT as on the specified date. Therefore, the assessee can avail the benefit of VSVA provided an appeal is filed within the stipulated time.

Further, the time prescribed for filing an appeal before the ITAT is 60 days from the date of receipt of the order. Therefore, the assessee would also be able to take shelter of the decision of the Supreme Court in the case of Suo Motu Writ Petition (Civil) No(s).3/2020 dated March 23, 2020. Wwww.itatonline.org  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.

It may be desirable to the querist to file an appeal before the Tribunal  explaining that the last date for filing the appeal was 21 st March however due to lock down , it could not be filed , now the querist is filing an appeal , the delay if any may be condoned . This may help to avoid any controversy. 

There is one appeal pending on the specified date against the order of S. 147 read with S.  144 of the Income tax Act. Only this appeal can be settled under VSVA. There is no clarification on the implications of a remand report on the appeal. The querist can make an application to the AO to rectify the order  . If the AO rectify the order the  querist can file revised groundsof appeal before the CIT (A) . If the order is rectified , the querist may have to settle only on the basis of rectified order. Other wise the querist may have to settle the original appeal without taking in to consideration the remand report .  The issue will be taken   up before the CBDT for clarification 

Our research team  tried filling up a draft form with your information and we are able to fill schedule-iV of B. 

While filling up the form in Part B, under the head “Details of pending appeal/writ/SLP/ DRP objections/Revision application/Arbitration/Conciliation/Mediation”, in column no.5 (If yes, filed by), please state that the appeal is filed by Assessee. 

Sir the scheme is called “The Direct Tax Vivad Se Vishwas Scheme , 2020 “ .   

After the assessment order the Assessee has time to file an  appeal before the CIT(A). The Right to file an  appeal accrued as soon as assessment order is passed. Limitation sets the end date and does not decide starting date. As per Income tax Act the time limit expires after 30 days of receipt of the order. In your case it seems your assessee has not received the order .  You may kindly apply to the Assessing officer to grant and serve the original copy of the order.   Basis this, the Assessee may file a declaration on the ground that the right to file appeal was pending as on 31st January 2020, and thereafter await the response of the Designated authority.  You may be eligible for availing the benefit of the   VSVScheme ,  2020 . 

According to us yes; They can take advantages of the Scheme.  Review is nothing but an extension of appeal. It can be considered as pendency of appeal . In the meeting had with the Chairman CBDT  a request was made to clarify whether pendency of Rectification can be considered as pendency  of Appeal . We have opined that pendency  of  Rectification application is also eligible for availing the benefit of the Scheme. The same principle can be applied to Review petition pending before High Court or even Supreme Court    

In State of Uttar Pradesh and Ors.v. Anil Kumar Sharma and anr (2015) 6 SSC 716.  Dealing with the review petition the Honourable Supreme Court held that  ,  person, however high, is above the law. No institution is exempt from accountability, including the judiciary. Accountability of the judiciary in respect of its judicial functions and orders is vouchsafed by provisions for appeal, revision and review of orders.

It seems the Govt is keen to settle all the disputes , According to us the querist can avail the benefit of the Scheme. Many of the issues will be taken before the Board for further clarification .  We will take up this issue also for clarification before the Board .   

According to us , the matter cannot be settled under VSVA by virtue of section 9 (a) (i) of the VSVA.  Which reads as under “  The provisions of this Act shall not apply— (a) in respect of tax arrear,— 

(i) relating to an assessment year in respect of which an assessment has 
been made under sub-section (3) of section 143 or section 144 or section 153A or section 153C of the Income-tax Act on the basis of search initiated under section 132 or section 132A of the Income-tax Act, if the amount of disputed tax exceeds five crore rupees; 

  The second appeal would be against an order under section 143(3) read with section 153A of the Act, on the basis of search initiated. Therefore, with the tax effect being more than Rs. 5 Cr, the assesee may  not be eligible under VSVA. 

Today The Income Tax Appellate Tribunal had arranged the Video conferencing on the Topic : The Direct Tax Vivad Se Viswas Act .2020. One of the representative  from the Bar Associations has raised the specific issue on the above issue raised by you , and brought to the notice of the Notice of Shri Pramod Chandra Mody Honourable Chairman CBDT .   You may also write to him about your query . He has agreed to answer all the issues raised by the professionals .    

The assessee can avail the benefit of the scheme only if appeal is pending as on 31 -1-2020.   Please refer Circular No 9 /2020   dt 22-04 -2020 , issued by the CBDT  which reads as under ; 

Q. no 53 : If loss is not allowed to be adjusted while calculating  disputed  tax, will  that loss be allowed to be carried forward ? 

Ans : As per the amendment  proposed in Vivad  se Vishwas, in a case where the dispute  in relation to an assessment year relates to reduction of Minimum Alternate Tax (MAT) credit or reduction of loss or depreciation, the appellant shall have an option either to (i)  include the  amount  of tax related to such  MAT credit or loss or depreciation in the amount of  disputedtax and carry forward the MAT credit or loss or depreciation or (ii) to carry forward the reduced tax credit or loss or depreciation. CBDT  will prescribe the manner of calculation in such cases. 

It is desirable to  wait and reads the clarification of CBDT as and when issued and take the appropriate decision .