Vikas Gupta and Son Vs the Union of India

VIKAS GUPTA AND SON HINDU UNDIVIDED FAMILY ADDRESS: NO.920, 9^TH MAIN, 4^TH CROSS, MICO LAYOUT BENGALURU – 560 076. PAN NO.AADHV 3663 F REPRESENTED BY KARTHA: MR.VIKAS GUPTA S/O ANIL GUPTA AGED ABOUT 50 YEARS.

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... PETITIONER

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(BY SRI RAJEEV CHANNAPPA NULVI, ADVOCATE)

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2

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AND:

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1 . THE UNION OF INDIA REPRESENTED BY ITS JOINT SECRETARY MINISTRY OF FINANCE AND DEPARTMENT OF REVENUE (INCOME TAX DEPARTMENT) ROON NO.46, NORTH BLOCK NEW DELHI, DELHI – 110 001.

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2 . THE CHAIRMAN CENTRAL BOARD OF DIRECT TAXES MINISTRY OF FINANCE AND DEPARTMENT OF REVENUE (INCOME TAX DEPARTMENT) ROOM NO.46, NORTH BLOCK NEW DELHI, DELHI – 110 001.

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3 . THE PRINCIPAL

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CHIEF COMMISSIONER OF INCOME TAX KARNATAKA AND GOA REGION CENTAL REVENUE BUILDING QUEEN’S ROAD, BENGALURU – 560 001.

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4 . THE ADDITIONAL/JOINT/DEPUTY/ ASSISTANT COMMISSIONER OF INCOME TAX /INCOME TAX OFFICER NATIONAL FACELESS ASSESSMENT CENTRE MAYUR BHAWAN, CONNAUGHT LANE BARAKHAMBA

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NEW DELHI – 110 001.

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... RESPONDENTS

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(BY SRI GOWTHAMDEV C.ULLAL, CGC FOR R-1;

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SRI E.I.SANMATHI AND SRI M.DILIP, ADVOCATES FOR R-2 TO R-4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO A. QUASH THE IMPUGNED REJECTION OF THE APPLICATION FORM 1 VIDE ACKNOWLEDGMENT NO. 718988650201124 FILED U/S 91 OF THE DIRECT TAX VIVAD SE VISHWAS SCHEME, 2024 FINANCE (NO.2) ACT, 2024 ON 09/12/2024, BY THE RESPONDENT AUTHORITY NO. 3 - THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, KARNATAKA AND GOA REGION, PERTAINING TO ASSESSMENT YEAR 2013-14 (ANNEXURE - A); B. DIRECT THE RESPONDENT AUTHORITIES TO ACCEPT FORM 1 VIDE ACKNOWLEDGMENT NO. 718988650201124 U/S 91 OF THE DIRECT TAX VIVAD SE VISHWAS SCHEME, 2024-FINANCE (NO.2) ACT, 2024 DATED 20/11/2024 AND PROCESSED UNDER THE DIRECT TAX VIVAD SE VISHWAS SCHEME, 2024 (ANNEXURE - H).

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IN WRIT PETITION No.2721 OF 2025

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BETWEEN:

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M/S. POWER POINT A PARTNERSHIP FIRM, REGISTERED UNDER PARTNERSHIP ACT, 1932 HAVING ITS OFFICE AT:NO.5, CURLY STREET, RICHMOND TOWN, BENGALURU – 560 025. REPRESENTED BY ITS PARTNER MR. MOHAMMED YOUSUFF AGED ABOUT 59 YEARS.

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... PETITIONER

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(BY SMT.JINITA CHATERJEE , ADVOCATE)

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AND:

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1 . THE UNION OF INDIA REPRESENTED BY ITS JOINT SECRETARY MINISTRY OF FIANCNE AND

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DEPARTMENT OF REVENUE (INCOME TAX DEPARTMENT) ROOM NO.46, NORTH BLOCK NEW DELHI, DELHI – 110 001.

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2 . THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX KARNATAKA AND GOA REGION CENTRAL REVENUE BUILDING QUEEN'S ROAD BENGALURU – 560 001.

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3 . THE DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -2(2) CENTRAL REVENUE BUILDING QUEEN'S ROAD, BENGALURU – 560 001.

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... RESPONDENTS

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(BY SRI THIMMANNA BHAT, CGC FOR R-1; SRI Y.V.RAVIRAJ AND SRI M.DILIP, ADVOCATES FOR R-2 AND R-3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE REJECTION ORDER DATED 30/12/2024 VIDE DIN NO. ITBA/COM/F/17/2024-25/1071665775(1) OF THE RESPONDENT NO.2 FOR THE RELEVANT ASSESSMENT YEAR 2019-20. (ANNEXURE-E); DIRECTING THE RESPONDENT TO ISSUE FORM-2 AND FORM-3 FOR COMPLIANCE BY THE PETITIONER.

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THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 16.09.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CAV ORDER

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IN WRIT PETITION No.924 OF 2025:

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The petitioner is before this Court seeking the following prayers:

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“A. To issue a Writ of certiorari, Quashing the impugned rejection of the application form 1 vide Acknowledgment No. 718988650201124 filed u/s 91 of the Direct Tax Vivad Se Vishwas Scheme, 2024- Finance (No.2) Act, 2024 on 09/12/2024, by the Respondent Authority No. 3 The Principal Chief Commissioner of Income Tax, Karnataka and Goa Region, pertaining to Assessment Year 2013-14 ( ANNEXURE - A )

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B. To issue a Writ of MANDAMUS, directing the respondent authorities to accept Form 1 vide Acknowledgment No. 718988650201124 u/s 91 of the Direct Tax Vivad Se Vishwas Scheme, 2024-Finance (No.2) Act, 2024 dated 20/11/2024 and processed under the Direct Tax Vivad Se Vishwas Scheme, 2024 ( ANNEXURE – ‘H’ )

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C. To pass any such other Writ, Order or Direction as this Ho’ble Court might deem fit to be issued in the fact and circumstances of the case in the interest of justice and equity.”

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The petitioner is before this Court calling in question

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rejection of the application filed under Section 91 of the Direct Tax Vivad Se Vishwas Scheme, 2024 [hereinafter referred to as the

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‘Scheme’ for short] for the Assessment Year 2013-14. A consequent direction by issuance of a writ in the nature of a mandamus is also sought to the respondent-authorities to accept the claim of the petitioner under the said Scheme.

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Heard Sri.Rajeev Channappa Nulvi, learned counsel appearing for the petitioner, Sri.Gowthamdev C. Ullal, learned CGC appearing for respondent No.1, Sri.E.I.Sanmathi and Sri.M.Dilip, learned counsels appearing for respondent Nos.2 to 4.

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Facts in brief, germane, are as follows:

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4.1. The petitioner is an assessee under the Income Tax Act,

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1961 [hereinafter referred to as the ‘Act’ for short]. For the Assessment Year 2013-14, the petitioner filed its income tax returns as obtaining under Section 139 of the Act. Long thereafter, the case of the petitioner was picked up for re-assessment under Section 148 of the Act and the petitioner therefore, filed its income tax returns for Assessment Year 2013-14 in view of the notice

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issued under Section 148 of the Act. In consequence thereof, the re-assessment proceedings under Section 148 of the Act was taken up and an assessment order was passed under Section 147 read

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with Sections 144 and 144B of the Act raising a demand of Rs.64,11,085/- for the aforesaid Assessment Year. The petitioner then files an appeal before the Commissioner of Income Tax (Appeals) under Section 250 of the Act.

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4.2. As on 22.07.2024, the cut-off date under the Scheme, no order was passed by the Commissioner of Income Tax (Appeals). Therefore, the appeal was still pending before the Commissioner of Income Tax (Appeals).

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4.3. On 16.08.2024, the Union of India introduces the Direct Tax Vivad Se Vishwas Scheme, 2024 as an amendment to the Finance Act, 2024 notifying the same on 16.08.2024. It was further indicated that the scheme would come into effect from 01.10.2024 by a separate Notification. On 19.09.2024, the Commissioner of Income Tax (Appeals) passes an order against the petitioner dismissing the appeal so filed under Section 250 of the Act. In all the events happen on 15.10.2024, the respondent No.2 issues a Circular by way of guiding notes on the provisions of the Scheme, 2024 as to its implementation and execution. The petitioner applies under the Scheme on 20.11.2024 by submitting an application in

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Form No.1 under Section 91 of the said Scheme. On the application filed by the petitioner, the order comes to be passed on 09.12.2024 rejecting Form No.1 on the score that the appeal of the petitioner was dismissed and the assessee was not eligible under the Scheme as there was no dispute existing/appeal pending as on the date of filing the declaration i.e., 20.11.2024. The petitioner being aggrieved by the said order, is before this Court seeking the aforesaid prayers.

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Learned counsel appearing of the petitioner contends that the assesses are eligible to avail the benefit of the Scheme only when there is an appeal of the assessee pending before the Appellate Authority as on 22.07.2024. The petitioner’s case in the appeal pertaining to Assessment Year 2013-14 was pending as on 22.07.2024 which makes the petitioner eligible to avail the benefit under the Scheme. The appeal comes to be dismissed long after the eligible date as obtaining under the Scheme. Therefore, the learned counsel contends that the impugned rejection of Form No.1 pertaining to Assessment Year 2013-14 was without application of mind and without following the mandatory provisions under the

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Scheme, 2024. The appeal was dismissed on 19.09.2024, the cutoff date for eligibility was 22.07.2024. The learned counsel submits that the petitioner was entitled under the said Scheme and would seek to place reliance upon the judgment of the Delhi High Court in identical circumstances.

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Per contra , learned counsel appearing for the Revenue would contend that pendency of appeal as on 22.07.2024 and disposal subsequently is noticed in the Circular dated 16.12.2024. As on the date of the rejection of Form No.1 filed by the assessee on 9.12.2024, the Circular was not available. Hence, the clarification regarding acceptability of Form No.1 where appeals were disposed of subsequent to 22.07.2024 was not available. It is only when the appeal is pending before the Commissioner of Income Tax (Appeals), the assessee can avail the benefit of the Scheme. The last date for filing an appeal was 20.11.2024. The rejection order in the case at hand was passed on 09.12.2024. Therefore, the petitioner was ineligible under the Scheme, no fault can be found with the rejection of the claim of the petitioner under the Scheme.

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I have given my anxious consideration to the

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submissions made by the learned counsel for the respective parties and have perused the material on record.

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The issue that falls for consideration is whether the benefit of the Scheme can be rendered to the hands of the petitioner-assessee whose appeal was pending as on the specified date but was disposed after the specified date under the Scheme, 2024.

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The afore-narrated facts are not in dispute. They are largely beyond contest as they are matters of fact. The entire issue revolves around the benefit of the Scheme becoming available to the petitioner, certain dates and events would require reiteration. The petitioner’s case was picked up for re-assessment by issuance of a notice on 15.11.2021. This culminated in an order being passed on 30.03.2022, against which the petitioner prefers an appeal before the Commissioner of Income Tax (Appeals) under Section 250 of the Act. The appeal is pending. A Direct Tax Vivad Se Vishwas Scheme, 2024 is notified by the government on

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16.08.2024 which comes about as an amendment to the Finance Act, 2024. In terms of the Scheme, the eligibility date would be 22.07.2024. Therefore, it is necessary to notice certain provisions of the Scheme. Section 89 of the Scheme-Finance Act 2 of 2024 reads as follows:

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“89(1) In this Scheme, unless the context otherwise requires,—

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(a) “appellant” means—

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(i) a person in whose case an appeal or a writ petition or special leave petition has been filed either by him or by the income-tax authority or by both, before an appellate forum and such appeal or petition is pending as on the specified date; or

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(ii) a person who has filed his objections before the Dispute Resolution Panel under section 144C of the Income-tax Act and the Dispute Resolution Panel has not issued any direction on or before the specified date; or

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(iii) a person in whose case the Dispute Resolution Panel has issued direction under sub-section (5) of section 144C of the Income-tax Act and the Assessing Officer has not completed the assessment under subsection (13) of that section on or before the specified date; or

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(iv) 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;

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(b) “appellate forum” means the Supreme Court or the High Court or the Income Tax Appellate Tribunal or the Commissioner (Appeals) or Joint Commissioner (Appeals), as the case may be;

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(c) “declarant” means a person who files declaration under section 91;

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(d) “declaration” means the declaration filed under section 91;

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(e) “designated authority” means an officer not below the rank of a Commissioner of Income-tax notified by the Principal Chief Commissioner for the purposes of this Scheme;

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(f) “disputed fee” means the fee determined under the provisions of the Income-tax Act in respect of which appeal has been filed by the appellant;

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(g) “disputed income” in relation to an assessment year, means the whole or so much of the total income as is relatable to the disputed tax;

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(h) “disputed interest” means the interest determined in any case under the provisions of the Income-tax Act, where—

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(i) such interest is not charged or chargeable on disputed tax;

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(ii) an appeal has been filed by the appellant in respect of such interest;

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(i) “disputed penalty” means the penalty determined in any case under the provisions of the Income-tax Act, where—

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(i) such penalty is not levied or leviable in respect of disputed income or disputed tax, as the case may be; (ii) an appeal has been filed by the appellant in respect of such penalty;

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(j) “disputed tax”, in relation to an assessment year or financial year, as the case may be, means the income-tax including surcharge and cess (hereafter in this Chapter referred to as the amount of tax) payable by the appellant under the provisions of the Income-tax Act, as computed hereunder:—

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(A) in a case where any appeal, writ petition or special leave petition is pending before the appellate forum as on the specified date, the amount of tax that is payable by the appellant if such appeal or writ petition or special leave petition was to be decided against him;

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(B) in a case where objection filed by the appellant is pending before the Dispute Resolution Panel under section 144C of the Income-tax Act, as on the specified date, the amount of tax payable by the appellant if the Dispute Resolution Panel was to confirm the variation proposed in the draft order;

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(C) in a case where Dispute Resolution Panel has issued any direction under sub-section (5) of section 144C of the Income-tax Act, and the Assessing Officer has not completed the assessment under sub-section (13) of that section on or before the specified date, the amount of tax payable by the appellant as per the assessment order to be passed by the Assessing Officer in pursuance of the said assessment under sub-section (13) thereof;

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(D) in a case where an application for revision under section 264 of the Income-tax Act, is pending as on the specified date, the amount of tax payable by the

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appellant if such application for revision was not to be accepted:

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Provided that in a case where the dispute in relation to an assessment year relates to reduction of tax credit under section 115JAA or section 115JD of the Incometax Act, or any loss or depreciation computed thereunder, the appellant shall have an option either to include the amount of tax related to such tax credit or loss or depreciation in the amount of disputed tax, or to carry forward the reduced tax credit or loss or depreciation, in such manner as may be prescribed.

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(k) “Income-tax Act” means the Income-tax Act, 1961;

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(l) “last date” means such date as may be notified by the Central Government in the Official Gazette;

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(m) “prescribed” means prescribed by rules made under this Act;

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(n) “specified date” means the 22nd day of July, 2024”

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Section 89(1)(a) of the Scheme defines “appellant”

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includes those persons whose appeal is pending as on the specified date. Section 89(1)(b) defines the term “appellate forum” to include the Forum of Appeals pending before the Commissioner of Income Tax (Appeals). Section 89(1)(n) mandates the specified date to be 22.07.2024. Section 89(1)(a) mandates that an appeal

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should be pending as on the specified date. These are the salient features qua definitions under the Scheme.

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What is discernable from the aforesaid definitions is that as on the specified date obtaining under Section 89(1)(n), which would be 22.07.2024, an appeal should be pending before the Commissioner (Appeals) - the Appellate Forum. The appeal of the petitioner was pending consideration before the Commissioner (Appeals) as on 22.07.2024, as the appeal comes to be rejected only on 19.09.2024. Therefore, the petitioner would undoubtedly come within the ambit of the conditions of the Scheme. Doubts arose as to the implementation of the Scheme in pending appeals or disposed matters. Therefore, a Circular comes to be issued for implementation and execution of the Scheme by the Revenue by way of Circular 12 of 2024 as a guidance note for implementation of the Scheme. The two Circulars issued, one on 15.10.2024 and the other on 16.12.2024, certain frequently asked questions that are found in the Scheme are necessary to be noticed.

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The Central Board of Direct Taxes Circular No. 12 of

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2024 dated 15^th October, 2024 reads as follows:

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“ The Direct Tax Vivad Se Vishwas Sehcme, 2024 (hereinafter referred as DTVSV Scheme, 2024) has been enacted vide Chapter IV of Finance (No.2) Act, 2024 to provide for dispute resolution in respect of pending income tax litigation. The objective of the Scheme is to, inter alia , reduce pending income tax litigation, generate timely revenue for the Government and benefit taxpayers by providing them peace of mind, certainty and savings on account of time and resources that would otherwise be spent on the long-drawn and vexatious litigation process.

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2. The commencement date of the said Scheme has already been notified as 1.10.2024. Further, Rules and Forms for enabling the Scheme have also been notified on 20.09.2024. After enactment of the DTVSV Scheme, 2024, several queries were received from the stake-holders seeking guidance in respect of various provisions contained therein.

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3. Accordingly, under Section 97 of the DTVSV Scheme, 2024 which empowers the Board to issue directions or instructions in public interest, following Guidance Note in the form of answers to the frequently asked questions (FAQs) is hereby issued. This will be helpful for the tax-payers for creating better awareness and understanding with respect to the provisions of the Scheme.

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S.	Issue	Comments
No.
Eligi	ble Cases
1	Which appeals	Please refer to section 89 of the
	are covered	Direct Tax Vivad Se Vishwas
	under Direct Tax	Scheme, 2024 (‘the DTVSV
	Vivad Se	Scheme, 2024’ or ‘the Scheme’)
	Vishwas	[contained in Chapter IV of the
	Scheme, 2024?	Finance (No.2) Act, 2024].
		Section 89 of the Scheme

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	provides for the definition of “appellant” which is – _(i)a person in whose case an appeal or a writ petition (WP) or special leave petition (SLP) has been filed either by him or by the income-tax authority or by both, before an appellate forum and such appeal or petition is pending as on the specified date i.e. 22.7.2024; or (ii)a person who has filed his objections before the Dispute Resolution Panel (DRP) under section 144C of the Income-tax Act, 1961 (‘the Act’) and the DRP has not issued any direction on or before 22.7.2024; or (iii)a person in whose case the DRP has issued direction under section 144C(5) of the Act and the AO has not completed the assessment under section 144C(13) on or before 22.07.2024: or (iv)_a person who has filed an application for revision under section 264 of the Act and such application is pending as on 22.7.2024.
Non-eligible cases
2 Which cases are not covered under DTVSV Scheme 2024?	As per section 96 of the Scheme, the Scheme shall not, inter alia, apply in respect of tax arrear ,-
	_(i)_relating to an assessment

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	year in respect of which an
…….. Appeal disposed off	assessment has been made under section 143(3)/144/147/153A/153C of the Acton the basis of search initiated under section 132/132A of the Act; _(ii)relating to an assessment year in respect of which prosecution has been instituted on or before the date of filing of declaration; (iii)relating to any undisclosed income from a source located outside India or undisclosed asset located outside India; (iv)_relating to an assessment or reassessment made on the basis of information received under an agreement referred to in section 90 or section 90A of the Act, if it relates to any tax arrear. There are certain other cases where provisions of COFEPOSA Act, 1974; UAPA Act, 1967; NDPS Act 1985; PBPT Act, 1988; PC Act, 1988; PMLA 2002 etc. may apply. Such cases are also not covered in the Scheme. For further details, refer section 96 of the Scheme. ……… ………
8 Suppose a taxpayer is eligible to apply for DTVSV Scheme, 2024	The DTVSV Scheme, 2024 is a Scheme for settlement of tax disputes.Where a decision has been given prior to the taxpayer filing a declaration, there is no dispute pending

year in respect of which an

……..
Appeal disposed off

assessment has been made
under
section
143(3)/144/147/153A/153C of
the Acton the basis of search
initiated
under
section
132/132A of the Act;
_(ii)relating to an assessment
year
in
respect
of
which
prosecution has been instituted
on or before the date of filing of
declaration;
(iii)relating to any undisclosed
income from a source located
outside India or undisclosed
asset located outside India;
(iv)_relating to an assessment
or reassessment made on the
basis of information received
under an agreement referred to
in section 90 or section 90A of
the Act, if it relates to any tax
arrear.
There are certain other cases
where provisions of COFEPOSA
Act, 1974; UAPA Act, 1967;
NDPS Act 1985; PBPT Act,
1988; PC Act, 1988; PMLA 2002
etc. may apply. Such cases are
also not covered in the Scheme.
For further details, refer section
96 of the Scheme.
……… ………

8
Suppose a
taxpayer is
eligible to
apply for
DTVSV
Scheme, 2024

The DTVSV Scheme, 2024 is a
Scheme for settlement of tax
disputes.Where a decision
has been given prior to the
taxpayer filing a declaration,
there is no dispute pending

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as his appeal is
pending as on
22.07.2024.
But
subsequently,
before the
taxpayer could
file declaration
under the
DTVSV
Scheme, 2024,
his appeal has
been disposed
off. Can such a
taxpayer still
file declaration
under the
Scheme?

unless
the
taxpayer
or
Department again prefers an
appeal. Therefore, where an
appeal is pending as on
22.07.2024
but
is
not
pending as on the date of
making
declaration
under
the Scheme, such cases shall
not
be
eligible
for
the
Scheme.
However, in cases where a
taxpayer files declaration under
Section 90 of the Scheme and
intimates
the
same
to
the
appellate
authority,
the
concerned appellate authority
may consider not disposing the
appeal of the taxpayer.
”
(Emphasis supplied)

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The Central Board of Direct Taxes Circular No. 19 of 2024 dated

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16^th December, 2024 reads as follows:

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“The Direct Tax Vivad Se Vishwas Scheme, 2024 (hereinafter referred as 'DTVSV Scheme, 2024' or 'Scheme') has been enacted vide Chapter IV of Finance (No.2) Act, 2024 to provide for dispute resolution in respect of pending income tax litigation. The objective of the Scheme is to, inter alia, reduce pending income tax litigation, generate timely revenue for the Government and benefit taxpayers by providing them peace of mind, certainty and savings on account of time and resources that would otherwise be spent on the long-drawn and vexatious litigation process.

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2. The commencement date of the said Scheme has already been notified as 1.10.2024. Further, Rules and Forms for enabling the Scheme have also been notified

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on 20.09.2024. After enactment of the DTVSV Scheme, 2024, several queries were received from the stakeholders seeking guidance in respect of various provisions contained therein.

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3. Accordingly, under Section 97 of the DTVSV Scheme, 2024 which empowers the Board to issue directions or instructions in public interest, Guidance Note 1/2024 in the form of answers to the frequently asked questions (FAQs) was issued vide circular no. 12 of 2024 dated 15.10.2024. However, several other queries have been received from the stake-holders for the clarification. Thus, Guidance Note 2/2024 in the form of answers to the frequently asked questions (FAQs) is hereby issued to provide further clarification. This will be helpful for the taxpayers for creating better awareness and understanding with respect to the provisions of the Scheme.

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4. In the present Guidance Note 2/2024, FAQ No.8 of the Guidance Note 1/2024 has been modified and incorporated as FAQ No. 36. Thus, FAQ No.8 of the Guidance Note 1/2024 shall be considered as omitted .

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S. No.	Issue	Comments
Eligi	bility of Cases
36	Suppose a taxpayer is eligible to apply for Direct Tax Vivad	Yes, such cases are eligible for settlement under the scheme as
	se Vishwas Scheme,	appeal was pending
	2024 as his appeal is	as on 22-7-2024.
	pending as on 22-7-	Disputed tax will be
	2024. But	calculated in the
	subsequently, before	same manner as if the
	the taxpayer could	appeal pending on
	file declaration under the Direct Tax	22-7-2024 is yet to be disposed of.
	Vivad se Vishwas
	Scheme, 2024, his appeal has been disposed of on merits or dismissed as withdrawn for the

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purposes of the
scheme. Can such a
taxpayer still file
declaration under
the scheme ?

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(Emphasis supplied)

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In terms of the Circulars either 12 or 19 of 2024, the petitioner’s case would completely fit in as the reason for petitioner’s application being rejected is the petitioner’s appeal comes to be dismissed prior to the filing of the declaration in Form No.1. The reason runs counter to the Scheme as the Scheme itself indicates that the appeal should be pending as on the date of the Notification of the Scheme qua the cut-off date. The eligibility date in terms of Section 89(1)(n) is 22.07.2024. It is not in dispute that the petitioner’s appeal was pending as on the said date. In identical circumstances, the High Court of Delhi in PT BUKAKA TEKNIC UTAMA vs. CIT¹ wherein the Court while interpreting the Scheme, has held as follows:

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“37. It is evidently clear from the abovenoted judicial pronouncements that the designated authority cannot go beyond the purview of the Direct Tax Vivad se Vishwas Act, 2020 and attach qualifications to conditions which are already meticulously provided in

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1 SCC OnLine Del 3625,

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the provisions of the Direct Tax Vivad se Vishwas Act, 2020.

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44. Taking into consideration the principles emerging from the decisions in B. Shah v. Presiding Officer, Labour Court [(1977) 4 SCC 384; 1977 SCC (L&S) 560; AIR 1978 SC 12.] , Associated Cement Companies v. Workmen [1959 SCC OnLine SC 80; AIR 1960 SC 56.] and Pandey Oraon v. Ram Chander Sahu [1992 Supp (2) SCC 77; AIR 1992 SC 195.] , the remedial statute should be interpreted liberally in a manner that words of such legislation shall be construed to give the widest operation which its language permits and to give complete remedy which its phraseology licences. Such statutes shall be read in a way to effectuate the intended objectives that the Legislature envisaged while drafting the statute and to justifiably secure that the relief contemplated by the statute is not denied to the class intended to be relieved. It is also a well-settled principle of law, as already propounded in the cases of Visitor, AMU v. K.S. Misra [(2007) 8 SCC 593; (2007) 2 SCC (L&S) 959.] and State of Tamil Nadu v. M.K. Kandaswami [(1975) 36 STC 191 (SC); (1975) 4 SCC 745; 1975 SCC (Tax) 402.] that the court shall avoid such constructions which would render a part of the statutory provision otiose or meaningless .”

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(Emphasis supplied)

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It further becomes necessary to notice whether the Circulars issued subsequently could take away the right of the assessee under the Scheme itself. This again need not detain this Court for long or delve deep. The High Court of Bombay in

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C.N.PATKAR CHARITABLE TRUST vs. UNION OF INDIA² , has

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held as follows:

¶149

““ 16. During the course of hearing, learned counsel for the petitioner has referred to and relied on a decision of this court in the case of Macrotech Developers Ltd. v. Pr. CIT reported in [2021] 434 ITR 131 (Bom) ; (2021) 126 taxmann.com 1 (Bom), wherein it has been observed to the effect that clarifications/answers given by the Central Board of Direct Taxes in response to certain questions not aligning with the legislative intent and doing violence to plain language of the statute and cannot be accepted. He has further relied on the Supreme Court judgment in the case of Keshavji Ravji and Co. v. CIT reported in [1990] 183 ITR 1 (SC) ; [1990] 82 CTR (SC) 123 wherein it has been considered that the Tribunals and Courts are not supposed to interpret law in the light of the circular . The Supreme Court, in the case of UCO Bank v. CIT reported in [1999] 237 ITR 889 (SC) ; [1999] 154 CTR (SC) 88 has observed that the Central Board of Direct Taxes circulars may tone down the rigour of the law and ensure a fair enforcement of its provisions, however those cannot be adverse to the assessee.

¶150

16. The power is for just, proper and efficient management of the work and are meant to mitigate the rigour application of provisions.

¶151

17. It may have to be referred to that circulars cannot be issued adverse to the interest of assessee nor those can be issued contradicting and nullifying the provisions of the enactment.

¶152

2 2021 SCC OnLine BOM 979,

¶153

24

¶154

22. In the scenario, when the circulars are issued exercising powers under sections 10 and 11 of the Direct Tax Vivad Se Vishwas Act, directions are supposed to aid and smoothen bringing into operation provisions and execution of the actions based thereon. The directions, circulars would not be issued under such provisions digressing or deviating from the object and purpose under the scheme of the enactment.

¶155

23. The situation thus emerges that answer to question No. 71 in the Circular No. 21 of 2020 tends to overreach the purpose and intendment underlying the provisions of the Act and the Rules and purports to exclude an otherwise eligible assessee on a ground and reason neither contained in nor reflected from the scheme. The circular is manifestly divorced from the object and purpose of the Direct Tax Vivad Se Vishwas scheme. ”

¶156

(Emphasis supplied)

¶157

In the light of the entitlement of the petitioner to avail the benefit under the Scheme as the petitioner’s appeal against the order passed by the Assessing Officer was pending before the Commissioner of Income Tax (Appeals) under Section 250 of the Act as on 22.07.2024, the rejection of the claim of the petitioner for availing the benefit of the Scheme is erroneous and contrary to law, the result of which would be unsustainabiliity of the order that is passed rejecting the claim of the petitioner and the consequence

¶158

25

¶159

would be a direction to permit the petitioner to avail the benefit of the Scheme.

¶160

IN WRIT PETITION No.2721 OF 2025:

¶161

The petitioner is before this Court seeking the following

¶162

prayers:

¶163

“(a) issue a Writ of certiorari or a direction in the nature of Writ of Certiorari quashing the rejection order dated 30/12/2024 vide DIN No. ITBA/COM/F/17/202425/1071665775(1) of the Respondent No.2 for the relevant assessment year 2019-20 ( ANNEXURE – ‘E’ );

¶164

(b) issue a Writ of Mandamus or a direction in the nature of Writ of Mandamus, directing the Respondent to issue Form-2 and Form-3 for compliance by the Petitioner;

¶165

(c) To pass such other order, direction or writ as this Hon’ble Court deems fit, and

¶166

(d) To direct the Respondent to award the costs of this Writ Petition.”

¶167

Heard Smt. Jinita Chaterjee, learned counsel appearing for the petitioner, Sri. Thimmanna Bhat, learned CGC appearing for respondent No.1, Sri. Y.V.Raviraj and Sri.M.Dilip, learned counsels appearing for respondent Nos.2 and 3.

¶168

26

¶169

Facts in brief, germane, are as follows:

¶170

The petitioner/firm is engaged in the business of electric contract works. The petitioner/firm is said to be regularly filing its annual returns of income under the category of ‘firm’ from the assessment year 2011-12. The firm filed its return of income for the assessment year 2019-20 under dispute. The assessment is said to have originally concluded by making impugned additions in terms of the assessment order dated 20-09-2021. On being aggrieved, an appeal is preferred before the Commissioner of Income Tax (Appeals), wherein the impugned addition therein was upheld. Against the said order, the petitioner prefers an appeal before the Income Tax Appellate Tribunal. The Tribunal sets aside the order in appeal in terms of its order dated 14-11-2023, remits the matter for further examination, after affording opportunity to the petitioner with regard to the impugned additions made, on account of the disputed issues. The re-assessment, in pursuance to the said direction, is said to be pending and the petitioner has not been called even on a single occasion for fresh examination relating to the challenged dispute, as per the directions of the Tribunal. In the meanwhile, the petitioner prefers a miscellaneous petition

¶171

27

¶172

before the Tribunal against the order dated 14-11-2023, which is still pending.

¶173

The petitioner filed its return of income for assessment year 2019-20 under Section 139 of the Act, declaring a total income of Rs.55,82,99,371/-. On 20-09-2021, the respondent passed an assessment order under Section 144 of the Act and the assessment was concluded with certain additions. The addition was, adding the total income to Rs.63,55,45,570/-. The assessment order was, on disallowing of cost improvement under LTCG, disallowance under Section 40(a)(ia) on rent payment, disallowance under Section 37 on salary expenses, disallowance on vehicle expenses, bad debts and TDS. Aggrieved by the assessment order, the petitioner files an appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) upholds the assessment order and the additions made by the Assessing Officer. Aggrieved by the said order, the petitioner prefers a second appeal before the Income Tax Appellate Tribunal against the order of the Commissioner (Appeals). The Tribunal, in terms of its order dated 14-11-2023 partly allows the appeal and owing to certain statistical

¶174

28

¶175

aberrations, sets the order aside for a limited purpose, for fresh examination of that limited purpose, with reasonable opportunity of hearing directed to be given to the petitioner. The assessment order was not quashed, only the order of the Tribunal was quashed.

¶176

It is the averment in the petition that the re-assessment in pursuance of the direction of the Income Tax Appellate Tribuanl was still pending. The petitioner was not called even on a single occasion for any examination as per the direction of the Tribunal. On 14-03-2024, the time of 120 days for filing an appeal against the order of the Tribunal under Section 260A(2)(a) expires. When things stood thus, the afore-quoted scheme was enacted through the Finance Act, 2024. To ward off obfuscation, a Guidance Note by way of a circular was notified on 15-10-2024. After the scheme coming into effect and guidance note being issued, the petitioner files a miscellaneous petition under Section 254(2) of the Act before the Tribunal for a review of its order dated 14-11-2023 for the disputed assessment year 2019-20, for reconsideration of the issue No.9 in the order of the Tribunal.

¶177

29

¶178

The Tribunal had remitted issue No.9 only to the file of the Assessing Officer for fresh examination, on the ground that the ledger book was not provided. Pending the said miscellaneous application, the petitioner files an application under the scheme, on the score that an appeal is pending before the Tribunal, therefore, the petitioner’s application under the scheme should be considered. The impugned order is passed rejecting the claim of the petitioner to the benefit of the scheme, on the score that no appeal was pending as on the date of notification of the scheme. The issue now boils down to, whether a miscellaneous application filed before the Tribunal on a particular issue amongst the core issues would entail an applicant of the kind to receive the benefit of the scheme.

¶179

The circular 12 of 2024 is quoted hereinabove. Eligible cases and ineligible cases are clearly brought out. Unless an appeal is pending before the Tribunal as on the date of notification of the scheme, no assessee can take the benefit of the scheme. Even otherwise, it is the case of the petitioner that as on the date of filing the application, the miscellaneous petition was also not pending. The specified date, according to the revenue, is 22-07-2024. The

¶180

30

¶181

Miscellaneous Petition is filed only on 02-12-2024. Therefore, as on the specified date, necessary to bring in any assessee under the scheme was 22-07-2024. A subsequent Miscellaneous application being filed would not mean that the petitioner would become entitled to the benefit of the scheme, as there was no appeal pending as on the appointed date. This is the marked difference between the companion petition and the subject petition. In the companion petition an appeal before the Tribunal was pending adjudication. In the case at hand, not on the appointed date, but subsequent to the appointed date, the miscellaneous petition was filed. This cannot be equated to an appeal pending.

¶182

Even the matter being remitted back to the hands of the Assessing Officer only on issue No.9 with regard to statistics, will again not clothe the assessee with a right to avail the benefit of the scheme. The scheme and the guidance hereinabove, both of which clearly hold that an appeal should be pending as on the appointed date. This is enough circumstance to deny the relief to the petitioner. Therefore, there is no merit in the contention of the petitioner.

¶183

31

¶184

23. In the aforesaid circumstances, the following:

¶185

ORDER

¶186

[i] Writ Petition No.924 of 2025 is allowed .

¶187

[ii] The Rejection of the application Form 1 vide Acknowledgement No.718988650201124 filed u/s 91 of the Direct Tax Vivad Se Vishwas Scheme, 2024 – Finance (No.2) Act, 2024 on 09/12/2024, by the Respondent Authority No.3 – The Principal Chief Commissioner of Income Tax, Karnataka & Goa Region, pertaining to Assessment Year 2013-14 (Annexure-A), stands quashed.

¶188

[iii] The respondent-authorities are directed to accept Form 1 vide Acknowledgement No.718988650201124 filed u/s 91 of the Direct Tax Vivad Se Vishwas Scheme, 2024 – Finance (No.2) Act, 2024 dated 20/11/2024 and processed under the Direct Tax Vivad Se Vishwas Scheme, 2024 (Annexure-H).

¶189

32

¶190

[iv] Writ Petition No.2721 of 2025 stands dismissed.

Sd/-

(M.NAGAPRASANNA)

JUDGE

CBC CT:MJ

Vikas Gupta and Son v. the Union of India

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Vikas Gupta and Son v. the Union of India

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