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Judgment
Kumar Rajaratnam, C.J.—This appeal filed by the Income Tax Department is directed against order of the learned Single Judge, dated 6-3-2002 in Writ Petition No. 808 of Shri Radhika Prakashan Pvt. Ltd. Vs. Union of India (UOI) and Another,
The first respondent moved the learned Single Judge seeking direction to the appellants to accept the declaration u/s 88 of the Finance Act No. 2 of 1998 for the assessment year 1991 under the Kar Vivad Samadhan Scheme, 1998. The application was filed before the Competent Authority on 28-1-1999.
The only question was whether on the date of filing the declaration, an appeal was pending or not since pendency of an appeal was a pre-requisite for a declaration to be made.
The facts very briefly are, the respondent Company commenced its business of publication of newspaper ''Swadesh'' with effect from 3-11-1989. The respondent Company filed its return for the Assessment Year 1990-91 on 31-2-1990 declaring loss at Rs. 1,90,240/-. The assessment was completed vide order dated 31-3-1993 u/s 143(3) of the Income Tax Act, 1961 at a total income of Rs. 2,78,760/-. In the assessment, following additions to income were made:--
(a) Disallowance of cash payments exceeding Rs. 10,000 u/s 40A(3). Rs. 1,16,000.00
(b) Unexplained cash credits in the name of Shri Khandelwal u/s 68. Rs. 1,50,000.00
(c) Unexplained/unproved share application money u/s 68. Rs. 1,22,000.00
The assessee preferred an appeal against the order of assessment before the Commissioner of Income Tax (Appeal), Bhopal. The CIT (Appeals) by order dated 28-2-1994 reduced the addition on account of unexplained/unproved share application money to Rs. 97,000.00 thereby allowing relief of Rs. 25,000/- in favour of the assessee and other additions were confirmed.
The respondent Company preferred appeal before the Income Tax Appellate Tribunal, Indore Bench, Indore assailing the order of the CIT (Appeals), Bhopal dated 28-2-1994. The said appeal was dismissed in limine by order dated 4-9-1998 as the assessee did not appear before the Tribunal despite service.
The assessee then moved an application u/s 254(2) of Income Tax Act before the Tribunal. The application was allowed by the Tribunal by order dated 1-6-1999 recalling its earlier order dated 4-9-1998 by which the appeal of the assessee was dismissed for non-prosecution. The Tribunal ultimately dismissed the appeal by order dated 10-5-2000 passed in ITA No. 503/Ind./94.
In the meantime, as stated above, the assessee filed a declaration in Form 1-A on 28-1-1999 u/s 88 of the Finance Act No. 2 of 1998 under the Kar Vivad Samadhan Scheme, 1998. It was contended by the revenue that on that date, there was no appeal pending and the pendency of the appeal was a pre-requisite for filing a declaration.
Once the order dated 4-9-1998 was set aside by order dated 1-6-1999, then it appears to us that the order passed on 1-6-1999 would relate back to the date of the appeal since the order of dismissal of the appeal for non-prosecution on 4-9-1998 was set aside. If that be so, the assesee''s declaration in Form 1-A on 28-1-1999 u/s 88 of the Finance Act No. 2 of 1998 would indicate that on the date of filing of the declaration namely on 28-1-1999, the appeal was deemed to have been pending. The learned Single Judge has allowed the writ petition only on this ground. It is settled law that when an appeal is dismissed for non-prosecution and that order of dismissal is set aside, it will relate back to the date of original appeal.
In that view of the matter, we do not see any error in the order of the learned Single Judge since we hold that on the date of filing of the declaration, the appeal is deemed to have been pending on the file of the appellate authority.
As a result, the Letters Patent Appeal is dismissed. However, there will be no order as to costs.