Re: Application under section 254 pending before the ITAT can he go for Vs Vs

The appeal filed by the assessee was decided against him but assessee filed a misc application u/s 254 before ITAT which is yet pending for hearing. van he opt for the scheme vsvs-2020

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.

 

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