Percy Pardiwalla, Senior Advocate i/by Atul Jasani, Advocates for the Petitioner.: S.V. Bharucha, Advocate for the Respondent

Held Court restored the Revenue's Appeal to the file of the Tribunal for a decision afresh on merits. Matter is, therefore, pending before the ITAT for fresh adjudication and this is the dispute, which Assessee is desirous of settling under the DTVSV Act. Relevant factual aspects are not in dispute. Against order of departmental assessing officer at first rung, appeal under Section 246 had been preferred by the assessee/Assessee to the CIT(A) and the same was decided in its favour. Aggrieved by the decision of CIT(A), the Revenue-Respondent preferred an Appeal before ITAT as provided under Section 253. Against order of remand passed by ITAT, Assessee preferred appeal before this Court under Section 260A . The substantial questions of law in appeal before this Court were tested and the matter resulted in setting aside order of ITAT, restoring the Appeal No.4632/MUM/2006 before ITAT for decision pursuant to aforementioned orders of this Court. What had been revived in the process, is the matter before ITAT which was preferred by the Revenue. The Appeal before ITAT was not filed by the assessee against order of CIT(A). Here it is the Revenue which went to ITAT against order of GIT(A). This Court had sent back the matter to ITAT and what was before ITAT is a matter by Revenue. Factually as well as in law it was Revenue's matter which stands revived. It is also not the Revenue's case that they have not accepted the said decision of this Court. Going by the above discussion, there is no doubt that Appeal No.4632/MUM/2006, which is pending, is Revenue's Appeal, which has also all along in Form-1 as well as in Form-3 been referred to as an Appeal by the department. Moreover, this fact is also clearly borne out by the oral judgment of this Court. This would leave nothing more for us to say except that the Revenue has completely misunderstood the facts. In the whole process, what is resurrected under orders of High Court is not the proceeding in ITAT by Assessee, but of the Revenue preferred under Section 253 where the Revenue is Appellant. May be the Appeal by the Revenue is revived at the instance of Assessee because of its proceedings in the High Court, but that would by no stretch of imagination make the appeal before ITAT, an appeal by Assessee under Section 253. Setting aside of order of the ITAT in the Appeal by Revenue and remand to ITAT postulates revival of appeal by the Revenue. It would therefore not be correct to say that the matter under Section 253 before the ITAT in the present case becomes an Appeal by Assessee, as has been restored to the ITAT on the Assessee's Appeal to High Court and not of the Revenue. Considering that the objective of the Scheme is to not only benefit the tax payer, but also the Revenue's collection. (para 13) Having observed that the pending Appeal No. 4632/MUM/2006 is a Revenue Appeal, the first proviso of Section 3 of the DTVSV Act would become applicable and, accordingly, the amount payable by the Assessee would be 50% of the amount, viz., 50% of the disputed tax. Assessee’s petition allowed (para 14)