Re: Appeal- Time barred

In a case time limit for filing of appeal expired before 31 January 2020; and assessee has filed belated appeal post 31 January 2020 with a request to condone the delay in filing of appeal, whether the assessee is entitled to avail the benefit of the Scheme in such a case? Also, what will be eligibility status of the assessee who has filed belated appeal which is pending for admission as on 31 January 2020? Whether in such case assessee would be eligible even if appellate authority has dismissed the appeal as being time-barred by an order passed after 31 January 2020?

If appeal filed before 31 January 2020 along with condonation and condonation is accepted before 31 January 2020

If condonation of delay is accepted before 31 Janaury 2020, then the same will be covered under the VSV scheme

 

If appeal filed before 31 January 2020 along with condonation and condonation is rejected before 31 January 2020

Since condonation of delay is rejbected before 31 Janaury 2020, then no appeal is pending as on 31 January 2020 and hence, the same will not be covered under the VSV scheme

 

If appeal filed before 31 January 2020 along with condonation and is pending 

If the appeal is pending and condonation is not disposed off, then reliance can be placed on the SC ruling in case of CIT v. Shatrusailya Digvijaysingh Jadeja (2005)(277 ITR 435(SC) rendered in the context of similar provisions of KVSS, 1998 states as under :

 

“…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 this 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”

 

Based on this ruling, appeal filed belatedly and if pending as on 31 January 2020 should be covered.  However, this needs to be clarified by the CBDT.

 

Actions to be taken by the taxpyer:- 

• In such cases, file declaration – If DA accepts, it is fine.  If DA doesn’t accept, file Writ before the HC (Anyway No tax to be paid) 

 

If appeal filed after 31 January 2020 with condonation 

 

Under Dispute Resolution Scheme 2016, specific clarification was introduced to cover such cases.

 

Circular 33 of 2016 (In context of Dispute Resolution Scheme 2016) 

“Question No.6: In a case the time period specified under section 249 of the Income-tax Act for filing of appeal expired on 29.2.2016. The assessee filed an appeal in this case on 5.4.2016 with a request to condone the delay in filing of appeal. The Commissioner (Appeals) condoned the delay in filing of the appeal. Is the Scheme available to the assessee in such a case?

 

Answer: In condonation cases, a declarant shall be eligible for the Scheme, if: (i) the time limit for filing of appeal under section 249 of the Income-tax Act, 1961 has got barred by limitation on or before 29.02.2016; (ii) the appeal and condonation application has been filed before Commissioner (Appeals) before 01.06.2016; and (iii) the delay in filing of such appeal is condoned by the Commissioner (Appeals) Hence, in the present case the Scheme is available to the assessee”

 

Hence, such appeal not pending as on 31 January 2020 may not be covered under VSV unless specifically clarified by the CBDT (since no pending appeal as on 31 January 2020).

 

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