Allowed

Dhanraj Malchand Rathi v. Union of India Thr. Ministry of Fininace Dept. of Revenue and Anr.

Bombay HC3 Jan 2022WP/3335/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition impugning the rejection of a declaration under the Direct Tax Vivad se Vishwas Act 2020. The Court held that the revision application under Section 264 of the Income Tax Act was still pending on the specified date, holding revenue authorities incorrect in rejecting eligibility based on time limits.

What did the court decide?

Respondents directed to process the application contained in Form-1 and pass orders as required in accordance with law.

Dhanraj Malchand Rathi Vs Union of India Thr. Ministry of Fininace… — Income Tax | Bombay HC (2022)

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Digitally signed by MEERA MEERA MAHESH MAHESH JADHAV JADHAV Date: 2022.01.06 11:10:17 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3335 OF 2021
WITH
WRIT PETITION NO.3271 OF 2021
WITH
WRIT PETITION NO.3272 OF 2021
WITH
WRIT PETITION NO.3337 OF 2021

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Dhanraj Malchand Rathi ….Petitioner

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 V/s.

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Union of India Through Ministry of
Finance Dept. of Revenue & Anr. …Respondents

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----

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Mr. Sanket S. Bora a/w Mr. Aashit A. Kankariya i/b SPCM Legal for
Petitioner

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Mr. Sham V. Walve for Respondents

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 ----

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 CORAM : K.R. SHRIRAM &

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R. N. LADDHA, JJ
 DATED : 3rd JANUARY 2022

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P.C. :

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WRIT PETITION NO.3335 OF 2021

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1Petitioner is impugning an order passed by respondent no.2 on 26th
February 2021 rejecting petitioner's declaration under the Direct Tax Vivad
se Vishwas Act 2020 (DTVSV Act).

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2Petitioner had filed revised income tax return for A.Y.-2006-2007 on
26th August 2011. The assessment order under Section 153A read with
Section 143(3) of the Income Tax Act 1961 (the Act), was passed on 30th
October 2012. Penalty order under Section 271(1)(c) was passed on 29th

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April 2013. On 15th May 2013 Appeal Memo in Form-35 was filed by

Meera Jadhav

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petitioner. On 6th November 2015, Commissioner of Income Tax (CIT)
(Appeal) passed an order dismissing the appeal based on an application
filed by petitioner seeking leave to withdraw the appeal.

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3On 22nd May 2017, petitioner filed an application under Section 264
of the Act before the CIT, Central - Pune. In the application, petitioner has
also sought condonation of delay in filing the application under Section 264.
We are not considering whether that such delay was condonable or not.
What we are looking for is only whether there was an application under
Section 264 pending on the specified date as required under the DTVSV Act.
4Petitioner would qualify as an appellant under Section 2(1)(a)(v) of
the DTVSV Act. It says, in this Act unless the context otherwise requires,
appellant means a person who has filed an application for revision under
Section 264 of the Income Tax Act and such application is pending as on the
specified date. Specified date under clause (n) of sub Section (1) of Section
2 of DTVSV Act is 31st January 2020.

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5Petitioner filed a declaration / application under the provisions of
DTVSV Act before the deadline for filing. Application was rejected on 26th
January 2021 and petitioner received an email dated 26th February 2021
informing petitioner about rejection order. In the email, it is stated as
under:

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 “The application filed by you under Vivad Se Vishwas Scheme has
been rejected on the basis that the revision petition filed by you was
out of time. Further, the delay was not condoned and application was
not processed. As per the facts of the case, no petition was pending as
on 31.01.2020 and since there was no pendency, application under
VsV was not eligible and hence rejected.”

Meera Jadhav

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6We have to observe that Income Tax Officer has no authority or power
under the DTVSV Act to dispose of the revision application filed by
petitioner under Section 264 of the Act. Petitioner had filed the revision
application under Section 264 with a request for condonation of delay and
that revision application has not been rejected and was still pending on the
date petitioner filed the declaration under the DTVSV Act.

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7The DTVSV Act only requires that the application under Section 264
of the Act must be pending on the specified date. Mr. Walve submitted that
time limit for disposal of the revision petition expired long before the
specified date and that before filing the application under Section 264,
petitioner had also withdrawn the appeal that he had filed before the
CIT(Appeal) and, therefore, application under Section 264 itself was not
maintainable. In our view, that was for the Commissioner before whom the
application under Section 264 was pending to decide and pass the order,
which has not been done. Whatever may be the merit of the application
under Section 264, the fact is that application was still pending on the date
the declaration under DTVSV Act was filed. Therefore, in our view, the
rejection of petitioner’s declaration under DTVSV Act for A.Y.-2006-2007 as
contained in the Form-1 filed on 25th December 2020, is incorrect.

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Respondents are directed to process the application as contained in
Form-1 filed on 25th December 2020 and pass such orders as required in
accordance with law.

Meera Jadhav

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Mr. Bora states petitioner had already made payments as per Form-1.
If that is so, he may tender the same to the concerned authority, who shall
examine the documents and give credit for the amount already paid.

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8Petition disposed.

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WRIT PETITION NO.3271 OF 2021 WITH WRIT PETITION NO.3272 OF 2021 WITH WRIT PETITION NO.3337 OF 2021

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9Writ Petition No.3271 of 2021 pertains to A.Y.-2007-2008, Writ
Petition No.3272 of 2021 pertains to A.Y.-2008-2009 and Writ Petition
No.3337 of 2021 pertains to A.Y.-2009-2010. Mr. Walve states that the
email dated 26th February 2021 referred to in Writ Petition No.3335 of 2021,
also refers to the three assessment years namely 2007-2008, 2008-2009 and
2009-2010. Mr. Walve, therefore, submits, in fairness, that order passed
earlier for A.Y.-2005-2007 in Writ Petition No.3335 of 2021 squarely applied
to these three petitions as well. Accordingly, these three petitions are also
allowed with the same directions as contained in Writ Petition No.3335 of
2021.

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10 All petitions disposed.

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(R. N. LADDHA, J)

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(K.R. SHRIRAM, J.)

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Meera Jadhav

Dhanraj Malchand Rathi v. Union of India Thr. Ministry of Fininace Dept. of Revenue and Anr.

Case brief

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Dhanraj Malchand Rathi v. Union of India Thr. Ministry of Fininace Dept. of Revenue and Anr.

Case brief

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