Re: query

In case first appeal which required to be filed with i thirty days from the date of Assessment order received. but it has been filed late say after 31/01/2020, my question is whether he can move an application under vivs 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 . 

   

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