ORDER : (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs. “(a) direct the Respondent to accept the declaration filed by the Petitioner under the Vivad se vishwas scheme for the Assessment Year 2010-11; (b) pending the admission, hearing and final disposal of this petition, direct the Respondent to accept the declaration filed by the Petitioner under the Vivad se vishwas scheme for the Assessment Year 2010-11;” 2. Return of income for A.Y. 2010-11 filed by the petitioner was taken up for scrutiny and assessment order dated 28th March, 2013 was passed under Section 143(3) of the Income Tax Act, 1961 (for short ‘the Act’) assessing the total income at Rs.58,17,604/- as against returned income of Rs.06,15,330/-. 2.1 Being aggrieved, the petitioner preferred appeal before CIT (A), which was dismissed by order dated 10th February, 2015. 2.2 The petitioner, therefore, preferred ITA No.1327/Ahd/2015 before the Income Tax Appellate Tribunal (for short ‘the Tribunal’), which was also dismissed in limine by order dated 26th March, 2019 as no one appeared on behalf of the petitioner nor an adjournment application was filed seeking any time. 2.3 The petitioner thereafter filed Miscellaneous Application before the Tribunal on 21st February, 2020 under Section 254(2) of the Act to recall the dismissal order dated 26th March, 2019. 2.4 On 17th March, 2020 Direct Tax Vivad Se Vishwas Act, 2020 (for short ‘VSV Act’) was enacted with the objective of reducing pending income tax litigation. 2.5 The Tribunal allowed the Miscellaneous Application No.75/And/2020 in ITA No.1327/Ahd/2015 by order dated 03rd September, 2020 recalling dismissal order dated 26th March, 2019 by restoring the Tax Appeal on file. 2.6 The petitioner thereafter preferred application under the VSV Act on 11th November, 2020 on the ground that in view of order dated 03rd September, 2020 passed by the Tribunal the appeal preferred by the petitioner became alive as on 31st January, 2020 which was the cut-off date prescribed under the VSV Act for being eligible to prefer an application by the assessee. 2.7 The petitioner thereafter filed revised declaration in VSV Act on 23rd January, 2021 in the prescribed Forms 1 and 2 for settling the appeal being ITA No.1327/And/2015 pending before the Tribunal. 2.7 The petitioner thereafter filed revised declaration in VSV Act on 23rd January, 2021 in the prescribed Forms 1 and 2 for settling the appeal being ITA No.1327/And/2015 pending before the Tribunal. 2.8 However, the application of the petitioner was not accepted and reason for rejection of the application was communicated on portal which reads as under. “Assessee had filed Form-1&2 on 11/11/2020 and the same was rejected as no appeal was pending as on 31/01/2020. Again assessee filed revised Form- 1 on 23/01/2021 by filling schedule-IV i.e. appeal pending before ITAT stating that the order of the ITAT dated 26/03/2019 was recalled by the ITAT on 03/09/2020 against the M/A filed by the assessee and accordingly his appeal was revived and pending before ITAT as on 31/01/2020. Order of ITAT was passed on 26/03/2019. The date on which order was received by the assessee has not been mentioned. It is not clear whether time to file appeal before High Court or time to file MA was available as on 31/01/2020. But the assessee filed M.A. on 21/02/2020 which was entertained and allowed by ITAT. FAQ has no such instance which exactly apply to the case. In order to ensure the decision taken in accordance with the spirit of the scheme, a reference was made to CCIT-1, seeking the advice of the CBDT on the Issue and CCIT-1 has directed to reject the VsVs” 3. Being aggrieved, the petitioner has preferred the present petition. 4. Learned senior advocate Mr.Tushar Hemani with learned advocate Ms.Vaibhavi Parikh for the petitioner submitted that in view of recall order dated 03rd September, 2020 the appeal preferred by the petitioner in the year 2015 before the Tribunal was restored to its file and accordingly, as per the Scheme of the VSV Act, appeal preferred by the petitioner was to be treated as pending as on 31st January, 2020 and the petitioner was entitled to get the benefit of reduction in tax payable under the VSV Act. 4.1 Learned senior advocate Mr.Hemani referred to various provisions of the VSV Act to submit that the petitioner is entitled for the benefit as the petitioner filed Form 1 and 2 on 23rd January, 2021 which was rejected on the ground that no appeal was pending as on 31st January, 2020. 4.1 Learned senior advocate Mr.Hemani referred to various provisions of the VSV Act to submit that the petitioner is entitled for the benefit as the petitioner filed Form 1 and 2 on 23rd January, 2021 which was rejected on the ground that no appeal was pending as on 31st January, 2020. The petitioner filed revised Forms 1 and 2 by filing Schedule IV i.e. appeal pending before the Tribunal stating that order dated 26th March, 2019 was recalled. It was, therefore, submitted that merely because no Frequently Asked Question (FAQ) was provided by the Central Board of Direct Taxes for the situation of the facts of the petitioner, the authority was not justified in rejecting the application because on the date of making declaration by the petitioner under the VSV Act, appeal preferred by the petitioner was deemed to be pending as on 31st January, 2020 in view of recall order passed by the Tribunal. 4.2 Learned senior advocate Mr.Hemani therefore submitted that the respondent may be directed to process the declaration filed by the petitioner under the VSV Act for the A.Y. 2010- 11. 5. On the other hand, learned senior standing counsel Mr.Varun Patel for the respondent submitted that admittedly as on 31st January, 2020 Miscellaneous Application for recalling of order dated 26th March, 2019 was not pending. It was, therefore, submitted that as on 31st January, 2020 no appeal was pending so that the petitioner become eligible for the benefit of the Scheme. Reference was made to Section 2(1)(a) of the VSV Act which provides for definition of ‘appellant’. It was, therefore, submitted that the petitioner could not be said to be the appellant as appeal filed before the Tribunal was not pending on the specified date i.e. 31st January, 2020 nor any application to recall the order dismissing the appeal was pending. 5.1 It was further submitted that the appeal was restored by order dated 03rd September, 2020 by the Tribunal which was beyond the specified date i.e. 31st January, 2020 and therefore, the respondent authority has rightly rejected the declaration in Forms 1 and 2 filed by the petitioner on 11th November, 2020 and revised declaration filed on 23rd January, 2021 in Schedule IV i.e. appeal pending before the ITAT. 5.2 Learned senior standing counsel also referred to Circular No.21/2020 dated 04th December, 2020 providing clarification on the provisions of the VSV Act, more particularly question No.61 and its answer, which reads as under. “Q. No.61. Whether Miscellaneous Application (MA) pending as on 31 January 2020 will also be covered by the scheme? Answer: If the MA pending on 21st Jan 2020 is in respect of an appeal which was dismissed in limine (before 31st Jan 2020), such MA is eligible. Disputed tax will be computed with reference to the appeal which was dismissed.” 5.3 Referring to the above answer, it was submitted that as per the aforesaid answer also, no Miscellaneous Application filed by the petitioner was not pending as on 31st January, 2020. It was, therefore, submitted that the respondent authority has rightly held that petitioner was not eligible for the benefit of VSV Scheme. 6. Considering the submissions made by learned advocates for the respective parties, it would be germane to refer to various provisions of the VSV Act 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; … … … xxx xxx xxx (n) “specified date” means the 31st day of January, 2020;” “3. Subject to the provisions of this Act, where a declarant files under the provisions of Amount this Act on or before the last date, a declaration to the designated authority in accordance payable be with the provisions of section 4 in respect of tax arrear, then, notwithstanding anything contained in the Income-tax Act or any other law for the time being in force, the amount payable by the declarant under this Act shall be as under. … … …” “4. Filing of declaration and particulars to be furnished. (1) The declaration referred to in section 3 shall be filed by the declarant before the designated authority in such form and verified in such manner as may be prescribed.” 7. In view of the above provisions of the VSV Act, it emerges that the petitioner has to be an appellant so as to be eligible on the specified date i.e. 31st January, 2020 to file declaration under Sections 3 and 4 of the VSV Act. Admittedly, the appeal filed by the petitioner in the year 2015 was not pending as on 31st January, 2020. However, in view of order dated 03rd September, 2020 passed by the Tribunal recalling its order dated 26th March, 2019 whereby appeal filed by the petitioner was dismissed, the appeal was restored to its file i.e. Appeal filed in the year 2015. Therefore, the appeal of the petitioner has to be considered as pending as on 31st January, 2020 which is the specified date as per the VSV Act. 7.1 It is also pertinent to note that when the petitioner has filed declaration under the VSV Act to claim the benefit of the Scheme, the Tribunal had already recalled the order dated 26th March, 2019 and therefore, the appeal preferred by the petitioner before the Tribunal was pending as on 31st January, 2020. 7.2 In view of the above facts, it cannot be said that no appeal was pending as on 31st January, 2020 when the petitioner filed the application/declaration under the provisions of the Scheme in view of order dated 03rd September, 2020 passed by the Tribunal in Miscellaneous Application No.75/Ahd/2020 preferred by the petitioner to recall order dated 26th March, 2019 whereby appeal of the petitioner was dismissed for non-prosecution. 8. Considering the above facts, the impugned action of the respondent authority of rejecting the declaration filed by the petitioner is not tenable and accordingly, the same is quashed and set aside. The respondent authority is directed to consider and process the declaration filed by the petitioner under the provisions of the VSV Act within a period of 12 weeks from the date of receipt of copy of this order. The petition is accordingly disposed of. Notice is discharged. No order as to costs.