Uttarakhand High Court
Unknown vs Income Tax Officer And Another on 19 February, 2024
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE MS. RITU BAHRI
AND
HON'BLE SRI JUSTICE RAKESH THAPLIYAL
19TH FEBRUARY, 2024
Special Appeal No.160 OF 2022
Sukhdev Singh Vedwal
...Appellant
Versus
Income Tax Officer and another.
...Respondents
Counsel for the Petitioner : Mr. S.K. Posti, learned senior counsel
assisted by Mr. D.K. Bankoti, learned
counsel.
Counsel for the respondent. : Mr. Hari Mohan Bhatia, learned
counsel.
JUDGMENT :
(per Ms. Ritu Bahri, C.J.)
The appellant has come up in this appeal
against the judgment of the learned Single Judge dated
17.05.2022, whereby his application to consider his case
under the Direct Taxes Vivad se Viswas Act, 2020 has
been rejected. The Government of India vide its Gazette
Notification dated 17.03.2020, has enacted an Act,
namely, the Direct Taxes Vivad se Viswas Act, 2020.
2. The learned Single Judge has dismissed the
Writ Petition by observing that, even if the assessment
order was received by the petitioner on 10.07.2020, as
per Annexure No.8, the very fact that he had made an
application under the Vivad se Viswas Act, 2020 on
02.05.2020, then this date of 02.05.2020 has to be
taken as to be the date of knowledge of the order, and
in that eventuality, the appellant's case would fall under
Section 2(1)(a)(i) and not under Section 2(1)(a)(ii).
Section 2 of the Vivad se Viswas Act, 2020, insofar as it
is relevant, reads as under :
"2. Definitions
(1) In this Act, unless the context otherwise
requires,--
'(a) "appellant" means--
(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;
(ii) a person in whose case an order has
been passed by the Assessing Officer, or an
order has been passed by the Commissioner
(Appeals) or the Income Tax Appellate Tribunal
in an appeal, or by the High Court in a writ
petition, on or before the specified date, and the
time for filing any appeal or special leave
petition against such order by that person has
not expired as on that date;"
3. Since no appeal was pending on 02.05.2020,
his application has been rightly rejected. In the present
case, as per Annexure no.8, page 30 of the paper-book
dated 10.07.2020, the Income Tax Department have
themselves, on an application made by the appellant,
supplied him the certified copy of the order dated
09.12.2019. This letter is not in dispute between the
parties. Once the certified copy was given on
10.07.2020, the appellant's right to file an appeal arose
on that date, as he could not have filed an appeal
without the certified copy of the assessment order.
Hence, for all intents and purposes the cause of action to
file an appeal arose on 10.07.2020. Hence, after
10.07.2020, the appellant could have made an
application under Act No.03 of 2020, and his case could
not have been rejected on the ground that he had made
an application on 02.05.2020 under the said Act. Even,
if he had made an application to take the benefit of that
scheme, the said application was not carrying the
certified copy of the order, and hence, the application in
itself was incomplete. On 02.05.2020, no appeal was
pending, as the appellant did not have the certified copy
of the order.
4. On the application made by the appellant on
02.05.2020, his application was rejected vide Annexure
No.11, on the ground that no appeal was pending before
any appellate forum. Hence, his application under Vivad
se Viswas Act, was rejected.
5. In the present case, the certified copy of the
order dated 09.12.2019 was given by the Income Tax
Department on 10.07.2020 - Annexure No.8. The cause
of action to file an appeal before the appellate authority
arose on 10.07.2020. Since certified copy was given on
10.07.2020, the appellant has thirty days' time to file an
appeal.
6. Since the impugned order was already passed
Annexure No.11, the appellant had no other option but
to approach this Court. His only remedy was to approach
this Court against the order dated 02.05.2020.
7. This petition itself be treated as an application
after the certified copy was filed by the appellant, and
the appeal is being allowed giving directions to the
respondent to consider the application dated
02.05.2020, keeping in view that the certified copy was
given to the appellant on 10.07.2020, Annexure No.8,
and his case falls under Section 2(1)(a)(ii).
______________
RITU BAHRI, C.J.
___________________
RAKESH THAPLIYAL, J.
Dt: 19th February, 2024
NR/
