Re: Miscellaneous application -Pending
Honorable ITAT has disposed Appeals for AYs 2008-09 and 2012-13 filed
by the Department (revenue) by a Common order dated 04.10.2019 partly
allowing the appeal of the Department by disallowing the relief given
by CIT(A).
The Appellant has received the consequential order of CIT(A) dated
11-02-2020 pertaining to the order of the ITAT dated 04-10-2019 on
17-02-2020.The Appellant has filed Miscellaneous Application before
the ITAT aggrieved by the ITAT order within the time limit allowed
under Rule 27 of ITAT rules after receiving the consequential order.
Also petition under Vivaad se vishwas scheme is filed only after the
consequential order is received from CIT Appeals ie) after 17.02.2020
. Had the CIT has released the consequential order of the ITAT before
31.01.2020 the Appellant could have filed the Miscellaneous
application before the ITAT and Petition under DTVSV before 31.01.2020
Vivaad se vishwas petition was rejected on the grounds that
Miscellaneous Application is not an Appeal and no appeal is pending as
on 31.01.2020 the Cut-off date.
Please let us know whether Miscellaneous application can be treated
as Appeal pending and how to proceed here as the hearing is still
pending before the ITAT on 12th February 2021.
Regards
P.V.Subba Rao
As per the clarification given by the CBDT ,the MA can be settled under the Scheme only if the same is dismissed in limine i.e. at the beginning of the proceedings. This has been clarified at FAQ No. 61 of CBDT Circular No. 21 of 2020 dated December 4, 2020. However we are of the considered opinion that ,
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)
On the facts as the application is rejected the assesee may have to file writ before the High Court.
Thank you Sir.
Please give your contact details for future correspondence.
Regards
P.V.Subba Rao