- 1 - HC-KAR NC: 2025:KHC:26417 WP No. 20362 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 20362 OF 2021 (T-IT) BETWEEN: 1. SRI P B AHMED AGED 65 YEARS, S/O LATE SRI BEERANMOIDEEN HAJI PADINHARE MOOLA HOUSE ALAMPADY PO KASARGOD-671123 1(a). SMT. NASEERA Ahmed W/O SRI P B AHMED AGED ABOUT 53 YEARS 1(b). SRI MOIDEEN THOUSEEF AHMED S/O SRI P B AHMED AGED ABOUT 36 YEARS 1(c). SRI. THAMSHEER AHMED S/O SRI P B AHMED AGED ABOUT 13 Years, 1(d). SMT. THASLIMA P.A D/O SRI P B AHMED AGED ABOUT 34 Years, …PETITIONERS (BY SMT JINITA CHATTERJEE., ADV FOR SRI S PARTHASARATHI., ADVOCATE) AND: 1. THE PRINCIPAL COMMISSIONER OF INCOME-TAX (CENTRAL) Digitally signed by SHWETHA RAGHAVENDRA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26417 WP No. 20362 of 2021 CENTRAL REVENUE BUILDING, QUEENS ROAD BENGALURU-560001 2. COMMISSIONER OF INCOME TAX (APPEALS) NATIONAL FACELESS APPEAL CENTRE (NFAC) DELHI-110001 …RESPONDENTS (BY SRI. RAVI RAJ Y V., ADVOCATE) THIS WRIT PETITION FILED UNDER ARTICLES 226 AND 227 OF THE CONSITTUTION OF INDIA PRAYING TO QUASH THE ORDER OF THE R-1 DTD.15.09.2021 TOGETHER WITH THE REASONS FOR REJECTION DTD.09.04.2021 FOR THE RELEVANT ASSESSMENT YEARS ANNEXURE-F AND F1 TO F7 AND DIRECT THE R-1 TO ISSUE FORM-3 FOR COMPLIANCE BY THE PETITIONER. THIS PETITION, COMING ON FOR THE ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ ORAL ORDER 1. Petitioner is before this Court seeking for the following reliefs: A) "Issue a writ of certiorari or a direction in the nature of writ of certiorari quashing the order of the 1st respondent dated 15.09.2021 in file - 3 - HC-KAR NC: 2025:KHC:26417 WP No. 20362 of 2021 F.No.VSVS/PCIT(c)/2020-21 together with the reasons for rejection dated 09.04.2021 for the relevant assessment years (Annexure-F & F-1 to F- 7); B) Issue a writ of Mandamus or a direction in the nature of Writ of Mandamus, directing the 1st respondent to issue Form-3 for compliance by the petitioner; C )Issue a writ of Prohibition or a direction in the nature of Writ of Prohibition, restraining the 2nd respondent from passing the appellate order until the disposal of this writ petition; D) Pass such other order or direction as this Hon'ble Court deems fit; and E) Direct the respondents to award the costs of this writ petition." C) 2. The petitioner, being aggrieved by the 1st respondent's order rejecting the application filed by the petitioner under the Vivad Se Vishwas Act, 2020, is before this court seeking the above reliefs. 3. The submission of Ms. Jinita Chatterjee, learned counsel for the petitioner is that: 3.1. An appeal having been filed, it is only the pendency of the appeal which is required to be considered by the 1st respondent in terms of The Direct Tax Vivad Se Vishwas Act, 2020 - 4 - HC-KAR NC: 2025:KHC:26417 WP No. 20362 of 2021 inasmuch as, the specified date in terms of Section 2(n) is, 31st day of January, 2020 on which date an appeal is required to be pending. 3.2. In the present case, appeals have been filed by the petitioner on 29.01.2020 before the specified date, the same would satisfy the requirement of the Act. She relies upon the decision of the Hon'ble Delhi High Court in the case of MEDEOR HOSPITAL LIMITED VS. PRINCIPAL COMMISSIONER OF INCOME TAX-04 AND OTHERS1 and submits that pendency of the appeal would only require an appeal to be filed and there is no requirement to satisfy the qualification of it to be valid or competent. 3.3. Even if an application for condoning delay was pending and not allowed so/as long as an 1 WP(C) 12116/2021 dd 28.10.2022 - 5 - HC-KAR NC: 2025:KHC:26417 WP No. 20362 of 2021 appeal has been filed before the specified date, the same would qualify under the Vivad Se Vishwas Act, 2020. 3.4. She further relies on Para No.21 of the said judgment and contend that FAQ No.59 of Circular No.21/2020 dated 04.12.2020 in which a clarification was issued as regards to the limitation period of filing an appeal has been held to be contrary to law by the Hon'ble Delhi High Court and as such respondents can no longer press the said FAQ No.59 into service. 3.5. It is not required for an appeal to be filed within time and or an application for condonation of delay to be allowed for the said appeal to be held to be valid or competent. 3.6. Irrespective of the delay which has been caused, if an appeal is filed before the specified - 6 - HC-KAR NC: 2025:KHC:26417 WP No. 20362 of 2021 date, the same would have to be taken into consideration. 4. Sri Y.V Ravi Raj, learned counsel for the revenue would submits that: 4.1. If an appeal is to be said to be pending, it ought to have been filed within time prescribed. Insofar as the present petition is concerned, the limitation period expired in the year 2015 as regards 6 of the assessments and as regards 7th assessment, the limitation period expired in the year 2017. 4.2. There being a long delay in so far as 6 assessments for nearly 5 years, it is unlikely that the delay would be condoned and the reason which has been given is not sufficient enough for condonation of such delay, namely that the petitioner was under the belief that the - 7 - HC-KAR NC: 2025:KHC:26417 WP No. 20362 of 2021 petition had been filed when it had, in fact, not been filed. 4.3. Therefore, he submits that it was the duty and obligation of the petitioner to ascertain if an appeal had been filed within the prescribed time or not and not having filed the same within time, condonation of delay not capable of being granted, the appeal cannot be held to be valid or competent and without such condonation of delay, an appeal cannot be said to be pending and as such, he submits that FAQ No.59 has been issued vide Circular No.21/2020 for this very purpose and as such the same has been clarified this very position. 4.4. FAQ No.59 categorically makes it clear that if an application is filed for condonation of delay and the said application is not allowed, an appeal cannot be said to be pending on the specified date for consideration under the Act. Lastly, he - 8 - HC-KAR NC: 2025:KHC:26417 WP No. 20362 of 2021 submits that the appeals have been filed only after the scheme had been introduced to avail the benefit thereon. 5. Heard Ms. Jinita Chatterji, learned counsel for petitioners and Sri Ravi Raj Y.V, learned counsel for the respondent. Perused papers. 6. The short question that would arise for consideration is, whether for the purpose of consideration of application under the Vivad Se Vishwas Act, 2020, an appeal had to be filed within time or if filed after the period of limitation, the condonation of delay application ought to have been allowed by the Appellate Authority for consideration of the same under the said Act? 7. This aspect is no longer res integra. The Hon'ble Delhi High Court has dealt with the matter in detail in MEDEOR HOSPITAL LIMITED supra more - 9 - HC-KAR NC: 2025:KHC:26417 WP No. 20362 of 2021 particularly at Para Nos. 13, 14, 15, 17 which are reproduced hereunder for easy reference: "13. Having heard learned counsel for the parties, this Court is of the view that the primary issue that arises for consideration in the present proceeding is as to what is the meaning of the word 'pending' in Section 2(1)(a) of the VSV Act. 14. Section 2(1)(a) and Section 2(1)(n) of the VSV Act are reproduced hereinbelow:- "2(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.... xxx xxx xxx (n) "specified date" means 31st day of January, 2020; 15. In the opinion of this Court, when a section contemplates pendency of an appeal, what is required 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. In Raja Kulkarni v. The State of Bombay reported in AIR 1954 SC 73, the Supreme Court has held that "whether an appeal is valid or competent is a question entirely for the appellate court before whom the appeal is filed to decide and this determination is possible only after the appeal is heard but - 10 - HC-KAR NC: 2025:KHC:26417 WP No. 20362 of 2021 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". 17. The Gujarat High Court in Tushar Agro Chemicals vs. The Principal Commissioner of Income Tax-1, 2021 (7) TMI 1267 has also held as under:- "11. In view of the aforestated legal position, there remains no shadow of doubt that appeal could be said to be pending, even if the delay occurred in filing the same was not condoned and even if it was allegedly irregular or incompetent. In the instant case therefore also, the Respondent could not have rejected the Declaration Form of the Petitioner filed under the said Act merely on the ground that the appeal was not valid or competent, as the delay occurred in filing the Appeal was not condoned by the Appellate Authority....." 8. A perusal of the above would categorically indicate that a reference has been made by the Hon'ble Delhi High Court to the decision of the Hon'ble Supreme Court as also of the Hon'ble Gujarat High Court and the Hon'ble Delhi High Court has come to a conclusion that the appeal does not cease to be an - 11 - HC-KAR NC: 2025:KHC:26417 WP No. 20362 of 2021 appeal though irregular and incompetent, and has further held that irrespective of delay in filing the appeal the same cannot be said to be invalid or incompetent. An appeal once filed would have to be taken into consideration for considering the eligibility under the Vivad Se Vishwas Act, 2020. 9. The Hon'ble Delhi High Court has also dealt with FAQ No.59, which has been relied upon by the learned counsel for the revenue. FAQ 59 is reproduced hereunder for easy reference. "FAQ 59: Whether the taxpaper in whose case the time limit for filing of appeal has expired before 31st Jan 2020 but an application for condonation of delay has been filed is eligible? Answer:If the time limit for filing appeal expired during the period from 1st April 2019 to 31st Jan, 2020 (both dates included in the period), and the application for condonation is filed before the date of issue of this circular, and appeal is admitted by the appellate authority before the date of filing of the declaration, such appeal will be deemed to be pending as on 31st Jan 2020." 10. It is on the basis of the said FAQ that Sri Y.V, Ravi Raj learned counsel for Revenue contends that the - 12 - HC-KAR NC: 2025:KHC:26417 WP No. 20362 of 2021 clarification which has been given as regards the limitation period would be applicable to all the authorities and they have to follow the same. The Hon'ble Delhi High Court dealing with FAQ No.59 as held at Para 21 of its decision as under: '21.Consequently, the FAQ No.59 of Circular No.21/2020 dated 4th December, 2020 issued by CBDT to the extend it contemplates admission of appeal before filing of declaration as a condition precedent in order for the appeal to be treated as pending and to be eligible for settlement under the VSV Act is contrary for law.' 11. A perusal of the above findings, it would indicate that the Hon'ble Delhi High Court held FAQ No.59 to be contrary to law. The Hon'ble Delhi High Court having held so, as regards the FAQ which has been issued by the revenue, which is applicable across the country, the said order of the Hon'ble Delhi High Court would be equally applicable and would be binding on this court. - 13 - HC-KAR NC: 2025:KHC:26417 WP No. 20362 of 2021 12. In that view of the matter, once FAQ No.59 has been held to be contrary to law, the revenue cannot again rely upon the same. Henceforth, it is directed that the revenue shall not rely upon FAQ No.59 and consider an appeal to be pending even if a condonation of delay application is still pending. In that view, I pass the following:- ORDER i) The Writ petition is allowed; ii) A Writ of Certiorari is issued quashing Annexure-F and F1 to F7. iii) A Writ of Mandamus is issued directing respondent no. 1 to consider the application of the petitioner without reference to FAQ 59 and without reference to the period of limitation, by considering that the appeal is valid and competent. [ SD/- (SURAJ GOVINDARAJ) JUDGE RJ List No.: 1 Sl No.: 2