JUDGMENT : PRANAV TRIVEDI, J. 1. Heard learned Senior Advocate Mr. Tushar Hemani with learned advocate Ms. Vaibhavi Parikh for the petitioner and learned Senior Standing Counsel Mr. Karan Sanghani for the respondent. 2. Having regard to the controversy involved, with the consent of the learned advocates for the respective parties, the matter is taken up for hearing. 3. The issue involved in both the petitions is identical and therefore, they have been heard together and would be disposed of by this common judgment. 4. Rule returnable forthwith. Learned Senior Standing Counsel Mr. Karan Sanghani waives service of notice of rule on behalf of the respondent in the respective petitions. 5. For the sake of convenience, facts are recorded from Special Civil Application No.13124 of 2025. 6. By this petition under Article 227 of the Constitution of India, the petitioner has prayed to quash and set aside order dated 28.03.2025 rejecting the declaration made by the petitioner under Direct Tax Vivad Se Vishwas Scheme , 2024 (For short “the DTVSV Scheme, 2024”). 7. The petitioner filed the return of income for the Assessment Year 2014-2015 which was the subject to the assessment order passed under section 144 read with section 147 of the INCOME TAX ACT , 1961 (For short “the Act”) dated 31.01.2022 making addition of Rs.6,00,203/-. 8. Being aggrieved, the petitioner preferred an appeal before the appellate authority along with application to condone the delay on 18.04.2024. Therefore, the appeal filed by the petitioner was pending as on 22.07.2024 which is the specified date as per provisions of section 89(1)(n) of the DTVSV Scheme, 2024. 9. By Finance (No.2) Act, 2024, the DTVSV Scheme, 2024 came into force as per Chapter IV from section 88 to section 99 of the said Act. As per the said Scheme for dispute resolution in respect of pending income tax litigation and to reduce the pending tax litigation in order to generate timely revenue for Government and benefit the tax payers 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, DTVSV Scheme, 2024 was notified with effect from 1.10.2024. The Rules under the DTVSV Scheme, 2024 have been notified on 20.09.2024. 10. The Rules under the DTVSV Scheme, 2024 have been notified on 20.09.2024. 10. Under section 97 of the DTVSV Scheme, 2024, the Central Board of Direct Taxes issued Guidance Note No.1/2024 in form of answers to the Frequently Asked Questions (FAQs) vide Circular No. 12 of 2024 dated 15.10.2024. Thereafter, Guidance Note No. 2/2024 was issued on 16.12.2024 and following FAQ NO.36 was inserted in place of FAQ NO.8 of Guidance Note No.1/2024 which reads as under: S. No. Issue Comments Eligibility of cases 36 Suppose a taxpayer is eligible to apply for DTVSV Scheme, 2024 as his appeal is pending as on 22.7.2024. But subsequently, before the taxpayer could file declaration under the DTVSV Scheme, 2024, his appeal has been disposed off on merits or dismissed as withdrawn for the purposes of the Scheme. Can such a taxpayer still file declaration under the Scheme? Yes, such cases are eligible for settlement under the Scheme as appeal was pending as on 22.7.2024. Disputed tax will be calculated in the same manner as if the appeal pending on 22.7.2024 is yet to be disposed off. 11. The Central Government thereafter issued Notification No.S.O.1650(E) [F. No. 32/2025/F. No.370142/9/2025-TPL] dated 8.04.2025 in exercise of the powers conferred by clause (l) of sub-section (1) of section 89 of the Finance (No.2) Act, 2024 and notified the last date as the 30th day of April, 2025 under the DTVSV Scheme, 2024 on or before which, a declaration in respect of tax arrear was to be filed by the declarant to the Designated Authority in accordance with the provisions of section 90 of the said Act. 12. Accordingly, the petitioner filed a declaration for the Assessment Year 2014-2015 on 21.12.2024 in Form-1 under sub-section (1) of section 90 read with sub-section (4) of section 91 of the Finance (No.2) Act, 2024 under the DTVSV Scheme, 2024 wherein the petitioner stated that appeal before the CIT(Appeals) was pending as on 22.07.2024. 13. Learned Senior Advocate Mr. Tushar Hemani with learned advocate Ms. Vaibhavi Parikh for the petitioner submitted that the eligibility criteria for filing declaration in Form-1 under the DTVSV Scheme, 2024 is that the appeal filed by the petitioner before the CIT (Appeals) should be pending on the specified date i.e. 22.07.2024. 13.1. 13. Learned Senior Advocate Mr. Tushar Hemani with learned advocate Ms. Vaibhavi Parikh for the petitioner submitted that the eligibility criteria for filing declaration in Form-1 under the DTVSV Scheme, 2024 is that the appeal filed by the petitioner before the CIT (Appeals) should be pending on the specified date i.e. 22.07.2024. 13.1. It was submitted that as per FAQ No.36 which is inserted by Guidance Note No.2/2024 dated 16.12.2024, CBDT has clarified that the assessee would be eligible for settlement under the Scheme as the appeal was pending as on 22.07.2024 and the disputed tax will be calculated in the same manner as if the appeal pending on 22.07.2024 is yet to be disposed of. In the instant case, the appeal is still pending. 13.2. It was therefore, submitted that even if the appeal is held to be non maintainable by CIT (Appeals) subsequently, after 22.07.2024, the petitioner would be eligible for benefits under the DTVSV Scheme, 2024. 14. In support of his submissions, reliance was placed on the following decisions: (i) Tushar Agro Chemicals v. Principal Commissioner of Income Tax , (2022) 441 ITR 179 (Gujarat) (ii) Bhaskar Manubhai Mehta v. Designated Authority Principal Chief Commissioner , (2022) 441 ITR 186 (Gujarat) 15. Per contra, learned Senior Standing Counsel Mr. Karan Sanghani for the respondent submitted that the delay occurred in filing the appeal was not condoned by the appellate authority, it could not be said that the valid appeal was pending before the appellate authority, nor the petitioner could be treated as an “Appellant” within the meaning of Section 89 (1)(a) of the said Act. 15.1 It was therefore, submitted that an invalid appeal cannot be said to be pending as on the specified dated i.e 22.07.2024 and therefore, the Designated Authority has rightly rejected the declaration of the petitioner. 16. Having considered the rival submissions made by learned advocates for the respective parties, it would be germane to refer to the relevant provisions of the DTVSV Scheme, 2024 as contained in sections 88 to 99 in Finance (No.2) Act, 2024 as under: “89.(1) in the Scheme, unless the context otherwise requires: (l) “last date” means such date as may be notified by the Central Government in the Official Gazette.” (n) “specified date” means the 22nd day of July, 2024” 17. As per section 90 of the the DTVSV Scheme, 2024, a declarant assessee has to pay the tax as on 1 st day of January, 2025. The date of computation of tax payable was further extended by Circular No.20/2024 dated 30.12.2024 from 31 st December, 2024 to 31 st January, 2025 and in view of Noti dated 8.04.2025, the last date of the Scheme was notified as the 30 th day of April, 2025. Accordingly, the petitioner has declaration under section 90(1) read with section 91(4) of the DTVSV Scheme, 2024 in Form-1 on the ground that the appeal preferred by the petitioner before the CIT(Appeals) which was filed on 18.04.2024 is still pending as on the specified date i.e. 22.07.2024 as per the provisions of section 89(1)(n) of Finance (No.2) Act, 2024. 18. In case of Tushar Agro Chemicals (supra), this Court has held as under: “10. At this juncture, it would be relevant to refer to the decision of Supreme Court in case of Commissioner of Income Tax v. Shatrusailya Digvijaysingh Jadeja, relied upon by the learned Senior Advocate Mr. Hemani, in which the S.C. had an occasion to deal with the issue, as to whether, the department could have rejected the Declaration filed under the similar scheme called Kar Vivad Samadhan Scheme, introduced vide the Finance [No.2] Act 1998, on the ground that the Revision/Appeal filed by the concerned Petitioner was time barred or was not valid. In the said case, the Supreme Court considered the object of the said Scheme as also the other earlier decisions, and observed as under: “13. In our view, the Scheme was in substance a recovery scheme though it was nom-enclatured as a "litigation settlement scheme" and was not similar to the earlier Voluntary Disclosure Scheme. As stated above, the said Scheme was a complete Code by itself. Its object was to put an end to all pending matters in the form of appeals, reference, revisions and writ petitions under the IT Act/WT Act. Keeping in mind the above object, we have to examine section 95(i)(c) of the Scheme, which was different from appeals under section 246, revisions under section 264, appeals under section 260A etc. of the IT Act and similar provisions under the W.T. Act. Under the I.T. Act, there is a difference between appeals, revisions and references. Keeping in mind the above object, we have to examine section 95(i)(c) of the Scheme, which was different from appeals under section 246, revisions under section 264, appeals under section 260A etc. of the IT Act and similar provisions under the W.T. Act. Under the I.T. Act, there is a difference between appeals, revisions and references. However, those differences were obliterated and appeals, revisions and references were put on par under section 95(i)(c) of the Scheme. The object behind section 95(i)(c) in putting on par appeals, references and revisions was to put an end to litigation in various forms and at various stages under the IT Act/Wealth Tax Act and, therefore, the rulings on the scope of appeals and revisions under the IT Act or on Voluntary Disclosure Scheme, will not apply to this case. 15. In the case of Dr. Mrs. Renuka Delta (supra), this Court has held on interpretation of section 95(i)(c) that if the appeal or revision is pending on the date of the filing of the declaration under section 88 of the Scheme, it is not for the DA to hold that the appeal/revision was "sham", "ineffective" or "infructuous" as it has. 16. In the case of Raja Kulkarni v. The State of Bombay, AIR 1954 SC 73 , this Court laid down that when a section contemplates pendency of an appeal, what is required for its application 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. 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 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. 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. To the same effect is the law laid down by the judgment of this Court in the case of Tirupati Balaji Developers (P) Ltd. v. State of Bihar & Others reported in (2004) 5 SCC 1 , in which it has been held that an appeal does not cease to be an appeal though irregular and incompetent.” 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. In the opinion of the Court, the Respondent had to only take into consideration, as to whether, the Petitioner had filed an Appeal, and the same was pending on the ‘specified date’ i.e. 31.1.2020. It was not for the Respondent to decide, as to whether, such Appeal was irregular or incompetent or invalid in the eye of law.” 19. In case of Bhaskar Manubhai Mehta (supra), it was held by this Court that if delay occurred in filing an appeal was not condoned by the appellate authority, still appeal could be said to be pending and department could not have rejected the declaration filed by the petitioner under the DTVSV Act. 20. Applying the above decisions to the facts of the case and in view of FAQ No.36, it is not in dispute that appeal filed by the petitioner was pending on the specified date i.e. 22.07.2024 and therefore, we are of the opinion that the Designated Authority was not justified in rejecting the declaration filed by the petitioner in Form-1 on the ground that the petitioner was not eligible for VSVS 2024 as among other things mentioned above, the appeal was very much pending as on 22.07.2024. 21. 21. In view of the foregoing reasons, the impugned communication in both the petitions dated 28.03.2025 displayed on the Portal of the Department, rejecting declaration in Form-1 filed by the petitioner under the DTVSV Scheme, 2024 is hereby quashed and set aside. The respondent Designated Authority is directed to process the declaration in Form-1 filed by the petitioner under the DTVSV Scheme, 2024 in accordance with the said scheme. 22. The petitions are accordingly allowed and disposed of. Rule is made absolute to the above extent in each petition. No order as to costs.