Appeal Details
Counselvise Citation
254920114 RSA 2013
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
1 year(s) 7 month(s) 29 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
30-12-2014
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
E
Next Hearing Date
26-11-2014
Assessment Year
misc
Appeal Filed On
01-05-2013
Judgement Text
I.T.A. NO.: 2548, 2549 AND 2550/DEL/13 ASSESSMENT YEARS: 2006 - 07, 2007 - 08 AND 2008 - 09 PAGE 1 OF 9 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI E BENCH, NEW DELHI [CORAM: PRAMOD KUMAR AM AND A. T. VARKEY JM ] I.T.A. NO .: 2548, 2549 AND 2550 /DEL/13 ASSESSMENT YEARS: 2006 - 07, 2007 - 08 AND 2008 - 09 MODIPON LIMITED .APPELLANT MODINAGAR, GHAZAIA BAD 201 204 [PAN:AACM2069E] VS. INCOME TAX OFFICER (TDS AND SURVEY) GHAZIABAD . RESPONDENT APPEARANCES BY: SANTOSH AGGARWAL , FOR THE APPELLANT E GUNJAN PRASAD , FOR THE RESPONDENT O R D E R PER PRAMOD KUMAR , AM : 1. THESE THREE AP PEALS CALL INTO QUESTION CORRECTNESS OF A COMMON ORDER DATED 14 TH SEPTEMBER 2012 PASSED BY THE CIT(A) IN THE MATTER OF DEMANDS RAISED ON THE ASSESSE UNDER SECTION 201 OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEARS 2006 - 07, 2007 - 08 AND 2008 - 09. ALL T HESE APPEALS INVOLVE A COMMON ISSUE ARISING OUT OF THE SAME SET OF FACTS, WERE HEARD TOGETHER, AND, AS A MATTER OF CONVENIENCE, THEREFORE, BEING DISPOSED OF BY THIS CONSOLIDATED ORDER. 2. THE APPEALS ARE TIME BARRED BY 142 DAYS BUT THE ASSESSE HAS FILED A PETITION PRAYING THAT THE DELAY IN FILING OF THE APPEALS BE CONDONED. THE GROUND ON WHICH THIS INDULGENCE IS SOUGHT IS A LEGAL ADVICE RECEIVED SUBSEQUENT TO THE EXPIRY OF TIME LIMIT FOR FILING THE APPEAL AGAINST THE IMPUGNED ORDERS. IT IS SUBMITTED THAT T HOUGH THE APPEAL WAS DISMISSED AS TIME BARRED, AND AS SUCH THERE WAS NO OCCASION FOR THE CIT(A) TO ADJUDICATE ON MERITS, THE LEARNED CIT(A) I.T.A. NO.: 2548, 2549 AND 2550/DEL/13 ASSESSMENT YEARS: 2006 - 07, 2007 - 08 AND 2008 - 09 PAGE 2 OF 9 HAD, WHILE DISMISSING THE APPEAL AND IN THE IMPUGNED ORDER, ALSO OBSERVED THAT THE ISSUE IN APPEAL IS A PURE MATTER OF VERIFICATION AND RECTIFICATION, AND THE CORRECT REMEDY, THEREFORE, WAS IN FILING OF A RECTIFICATION PETITION UNDER SECTION 154. TAKING A CLUE FROM THESE OBSERVATIONS, THE ASSESSE DID NOT FILE AN APPEAL AGAINST THE ORDER OF THE LEARNED CIT(A), AND, INSTE AD, FILED A RECTIFICATION PETITION BEFORE THE ASSESSIN G OFFICER. HOWEVER, THIS RECTIFICATION PETITION WAS DISMISSED BY THE ASSESSING OFFICER ON THE GROUND THAT AS THE CIT(A) HAS DECIDED THE MATTER ON MERITS, IT IS NOT OPEN TO HIM TO ADJUDICATE ON THE SAME. WHEN ASSESSEE SOUGHT LEGAL ADVICE ON HOW TO COME OUT OF THIS CUL - DE - SAC , THE ASSESSE WAS ADVISED TO FILE THE PRESENT APPEALS. IN THE MEANTIME, HOWEVER, THE TIME LIMIT FOR FILING OF THE APPEALS AGAINST THE ORDER OF THE CIT(A) HAD EXPIRED, AND IT IS FOR TH IS REASON THAT THE ASSESSE SEEKS CONDONATION OF DELAY IN FILING OF APPEALS. 3. SHRI SANTOSH AGARWAL, LEARNED COUNSEL FOR THE ASSESSE, TAKES US THROUGH THE CONDONATION PETITION AND FAIRLY SUBMITS THAT HIS GRIEVANCE IS AGAINST THE FACT OF, RATHER THAN CONT ENT OF, LEARNED CIT(A)S OBSERVATIONS ON MERITS, WHICH ENDED UP DEPRIVING THE ASSESSE OF ADJUDICATION BY THE ASSESSING OFFICER ON THE RECTIFICATION PETITION. HE SUBMITS THAT LEARNED CIT(A) HAD NO OCCASION TO MAKE ANY OBSERVATIONS ON MERITS AS THE APPEAL WA S DISMISSED AS TIME BARRED BY THE CIT(A). IT WAS ALSO POINTED OUT THE ASSESSE WAS AGGRIEVED OF L EARNED CIT(A) S OBSERVATIONS ON MERITS, BUT THAT ASPECT OF THE MATTER WAS WHOLLY ACADEMIC AS THE ASSESSE WAS, THOUGH SOMEWHAT OBLIQUELY, ADVISED TO FOLLOW THE R EMEDIES BEFORE THE AO HIMSELF, AND AS THE ASSESSE WAS UNDER THE BONAFIDE IMPRESSION THAT, IN DUE DEFERENCE TO THE OBSERVATIONS OF THE LEARNED CIT(A), THE AO SHALL DECIDE THE MATTER IN RECTIFICATION PROCEEDINGS, THE ASSESSE DID NOT FILE THE APPEAL. IT IS ONLY WHEN THE ASSESSE REALIZED THAT HE IS APPARENTLY PREJUDICED BY A NUANCE OF LAW WHICH HAS FETTERED THE POWERS OF THE AO THAT THE ASSESSE SOUGHT THE EXPERT LEGAL ADVICE , AND, BASED ON THIS LEGAL ADVICE, THE ASSESSE HAS FILED THE PRESENT APPEALS. LEARNED COUNSEL FOR THE ASSESSE FAIRLY STATES THAT IN VIEW OF THE ABOVE PECULIAR CIRCUMSTANCES, ALL THAT HE SEEKS IS THE VACATION OF UNWARRANTED I.T.A. NO.: 2548, 2549 AND 2550/DEL/13 ASSESSMENT YEARS: 2006 - 07, 2007 - 08 AND 2008 - 09 PAGE 3 OF 9 REMARKS BY THE CIT(A) AND THAT HE DOES NOT EVEN CONSIDER IT APPROPRIATE TO PURSUE HIS GRIEVANCE AGAINST THESE REMARKS, ON MERITS, AT THIS STAGE. ALL THAT HE SEEKS THUS IS REMOVAL OF FETTERS ON THE POWERS OF THE AO UNDER SECTION 154 WHICH ARE RESULT OF THESE UNWARRANTED REMARKS OF THE CIT(A). 3. SHRI GUNJAN PRASAD, L EARNED COMMISSIONER - DEPARTMENTAL REPRESENTATIVE , VEHEME NTLY OPPOSES THIS CONDONA TION PETITION. HE CONTENDS THAT FILING OF THESE APPEALS IS CLEARLY AN AFTER THOUGHT INASMUCH AS IT WAS A CONSCIOUS DECISION OF THE ASSESSE NOT TO PURSUE ANY GRIEVANCES, EVEN IF ANY, AGAINST THE IMPUGNED ORDER PASSED BY THE CIT(A). ONCE THIS DECISION IS TAKEN, IT CANNOT BE OPEN TO THE ASSESSE TO REVIEW HIS OPTIONS. IT IS ALSO POINTED OUT THAT PAST RECORD OF THE ASSESSE SUGGESTS THAT THE ASSESSE IS A HABITUAL DEFAULTER IN ADHERENCE OF TIME LIMIT FOR FILING OF APPEALS, AS EVEN THE APP EAL BEFORE THE CIT(A) WAS DELAYED BY A PERIOD OF 3 YEARS AND IT WAS FOR THIS REASON THAT THE APPEAL WAS DISMISSED BY THE CIT(A). IDEALLY, THE APPELLANT SHOULD HAVE TAKEN THE PROPER LEGAL ADVICE IMMEDIATELY UPON RECEIPT OF THE IMPUGNED ORDER, AND SHOULD N OT HAVE WAITED TILL THE COMPLICATIONS AROSE IN THE RECTIFICATION PROCEEDINGS BEFORE THE ASSESSING OFFICER. LEARNED DR SUBMITS THAT LAW HELPS THOSE WHO REMAIN VIGILANT ABOUT THEIR RIGHTS AND WHO COME WITH CLEAN HANDS. IT IS SUBMITTED THAT THE APPELLANT IS A VERY WELL ESTABLISHED BUSINESS HOUSE AND IT CANNOT BE BELIEVED THAT THE RIGHT LEGAL ADVICE WAS NOT AVAILABLE TO THE ASSESSE. IT IS CLEARLY, ACCORDING TO THE LEARNED DR, A CASE OF AFTERTHOUGHT AND CONDONING DELAY IN SUCH A CASE WILL INCENTIVIZE WILFUL MISC ONDUCT BY THE LITIGANTS. WE ARE THUS URGED TO REJECT THE CONDONATION PETITION. HOWEVER, WHEN WE PUT IT TO THE LEARNED DR THAT ALL THAT THE ASSESSE IS SEEKING, IN SUBSTANCE, IS THAT HIS RECTIFICATION PETITION SHOULD BE ADJUDICATED UPON BY THE AO ON MERITS, AND NOT FACILITATING EVEN THIS FUNDAMENTAL REMEDY UNDER THE GRIEVANCE REDRESSAL MECHANISM WILL NOT DO ANY GOOD TO THE CAUSE OF JUSTICE AND FAIR PLAY, LEARNED DR WAS GRACIOUS ENOUGH TO LEAVE THE ISSUE FOR OUR ADJUDICATION AS WE DEEM FIT. I.T.A. NO.: 2548, 2549 AND 2550/DEL/13 ASSESSMENT YEARS: 2006 - 07, 2007 - 08 AND 2008 - 09 PAGE 4 OF 9 4. HAVING GIVEN OUR CAREFUL CONSIDERATION TO THE RIVAL CONTENTIONS AND HAVING PERUSED THE MATERIAL ON RECORD, WE ARE INCLINED TO CONDONE THE DELAY IN FILING OF THESE APPEALS. IN OUR CONSIDERED VIEW, WHILE ADJUDICATING UPON A CONDONATION PETITION WE ARE NOT REQUIRED AS TO CONSIDER AS TO WHAT SHOULD HAVE HAPPENED IN AN IDEAL SITUATION BUT ALL THAT WE ARE REQUIRED TO SEE IS WHETHER THE REASON GIVEN BY THE APPLICANT IS A REASONABLE REASON WHICH HOLDS THE TEST OF HUMAN PROBABILITIES AND WHICH COULD BE A SOUND REASON FOR A REA SONABLE PERSON IN THE GIVEN CIRCUMSTANCES. HERE IS A CASE IN WHICH A PLAIN LOOK AT THE IMPUGNED ORDER SUGGESTS, TO A LAYMAN EVEN WITH SOME UNDERSTANDING OF INCOME TAX PROCEDURES, THAT THE REMEDY CAN BE FOUND AT THE STAGE OF THE ASSESSING OFFICER ITSELF, AN D, BASED ON THIS UNDERSTANDING, THE APPEAL WAS NOT FILED. HOWEVER, WITH THE UNFOLDING OF SUBSEQUENT DEVELOPMENTS, THE ASSESSE HAD TO RESORT TO AN EXPERT OPINION WHICH SUGGESTED THAT FILING OF APPEAL AGAINST THE ORDER OF THE CIT(A) IS ABSOLUTELY ESSENTIAL T O SAFEGUARD HIS LEGITIMATE INTERESTS. IN THESE CIRCUMSTANCES, IN OUR CONSIDERED VIEW, THERE IS A REASONABLE CAUSE FOR CONDONATION OF DELAY. AS WE HOLD SO, WE ARE REMINDED OF , AND ARE GUIDED BY, THE OFT QUOTED WORDS OF HONBLE SUPREME COURT IN THE CASE COLL ECTOR, LAND ACQUISITION VS MST KATIJI & ORS (167 ITR 671) AS FOLLOWS: 3. THE LEGISLATURE HAS CONFERRED THE POWER TO CONDONE DELAY BY ENACTING S. 5 OF THE LIMITATION ACT OF 1963 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSI NG OF MATTERS ON 'MERITS'. THE EXPRESSION 'SUFFICIENT CAUSE' EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE THAT BEING THE LIFE - PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. IT IS COMMON KNOWLEDGE THAT THIS COURT HAS BEEN MAKING A JUSTIFIABLY LIBERAL APPROACH IN MATTERS INSTITUTED IN THIS COURT. BUT THE MESSAGE DOES NOT APPEAR TO HAVE PERCOLATED DOWN TO ALL THE OTHER COURTS IN THE HIERARCHY. 4. AND SUCH A LIBERAL APPROACH IS ADOPTED ON PRINCIPLE AS IT IS REALIZED THAT: 1. ORDINARILY, A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. I.T.A. NO.: 2548, 2549 AND 2550/DEL/13 ASSESSMENT YEARS: 2006 - 07, 2007 - 08 AND 2008 - 09 PAGE 5 OF 9 AS AGAINST THIS, WHEN DELAY IS CONDONED, THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOUR'S DELAY, EVERY SECOND'S DELAY ? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE AND PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTI AL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON - DELIBERATE DELAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT, HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT THE JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUS E IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 5. MAKING A JUSTICE - ORIENTED APPROACH FROM THIS PERSPECTIVE, THERE WAS SUFFICIENT CAUSE FOR CONDONING THE DELAY IN THE INSTITUTION OF THE APPEAL. THE FACT THAT IT WAS THE 'STATE' WHICH WAS SE EKING CONDONATION AND NOT A PRIVATE PARTY WAS ALTOGETHER IRRELEVANT. THE DOCTRINE OF EQUALITY BEFORE LAW DEMANDS THAT ALL LITIGANTS INCLUDING THE STATE AS A LITIGANT, ARE ACCORDED THE SAME TREATMENT AND THE LAW IS ADMINISTERED IN AN EVEN - HANDED MANNER. THE RE IS NO WARRANT FOR ACCORDING A STEP - MOTHERLY TREATMENT WHEN THE 'STATE' IS THE APPLICANT PRAYING FOR CONDONATION OF DELAY. IN FACT, EXPERIENCE SHOWS THAT ON ACCOUNT OF AN IMPERSONAL MACHINERY (NO ONE IN CHARGE OF THE MATTER IS DIRECTLY HIT OR HURT BY TH E JUDGMENT SOUGHT TO BE SUBJECTED TO APPEAL) AND THE INHERITED BUREAUCRATIC METHODOLOGY IMBUED WITH THE NOTE - MAKING, FILE PUSHING, AND PASSING - ON - THE - BUCK ETHOS, DELAY ON ITS PART IS LESS DIFFICULT TO UNDERSTAND THOUGH MORE DIFFICULT TO APPROVE. IN ANY EV ENT, THE STATE WHICH REPRESENTS THE COLLECTIVE CAUSE OF THE COMMUNITY, DOES NOT DESERVE A LITIGANT NON GRATA STATUS. THE COURT, THEREFORE, HAVE TO BE INFORMED OF THE SPIRIT AND PHILOSOPHY OF THE PROVISION IN THE COURSE OF THE INTERPRETATION OF THE EXPRESSI ON 'SUFFICIENT CAUSE'. SO ALSO THE SAME APPROACH HAS TO BE EVIDENCED IN ITS APPLICATION TO MATTERS AT HAND WITH THE END IN VIEW TO DO EVEN - HANDED JUSTICE ON MERITS IN PREFERENCE TO THE APPROACH WHICH SCUTTLES A DECISION ON MERITS. 5. COMING TO THE MERITS OF THE APPEAL BEFORE US, WE HAVE NOTED THAT IN THE IMPUGNED ORDER PASSED BY THE CIT(A), HE HAS DISMISSED THE APPEALS AS TIME I.T.A. NO.: 2548, 2549 AND 2550/DEL/13 ASSESSMENT YEARS: 2006 - 07, 2007 - 08 AND 2008 - 09 PAGE 6 OF 9 BARRED BUT YET HE HAS PROCEEDED TO DISPOSE OF THE MATTERS ON MERITS AS WELL. AS LEARNED COUNSEL FOR THE ASSESSE RIGHTLY POINTS OUT, ONCE THE APPEALS WERE TO BE DISMISSED THE APPEALS ON MERITS, THE MATTER ENDS THERE AND THERE IS NO OCCASION FOR THE CIT(A) TO MAKE ANY ADJUDICATION ON MERITS. SUCH OBSERVATIONS WERE WHOLLY UNWARRANTED AND DONOT BIND ANYONE - THE ASSESSE OR THE ASSESSING OF FICER. DEALING WITH AN IDENTICAL SITUATION, A COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF DR MURARI MOHAN KOKEY VS ITO ( ITA NOS 1397/KOL/2014 AND OTHERS; ORDER DATED 5 TH NOVEMBER, 2014 ) , HAS OBSERVED AS FOLLOWS: 8. FURTHER, IN THE PRESENT CASE BEFORE US THE CIT(A) HAS NOT CONDONED THE DELAY BUT HE AS ADJUDICATED THE ISSUES ON MERITS AS IS EVIDENT FROM THE IMPUGNED APPELLATE ORDER. WE ARE OF THE VIEW THAT IN CASE CIT(A) CHOSE NOT TO CONDONE THE DELAY, HE HAS NO BUSINESS TO ADJUDICATE THE APPEAL ON MER ITS. FOR THIS, WE ARE OF THE VIEW THAT FIRST OF ALL, THE APPEAL SHOULD BE ADMITTED FOR MAKING A DECISION ON MERITS BECAUSE THE RIGHT TO APPEAL IS NEITHER AN ABSOLUTE RIGHT NOR AN INGREDIENT OF NATURAL JUSTICE THE PRINCIPLES OF WHICH MUST BE FOLLOWED IN AL L JUDICIAL AND QUASI JUDICIAL ADJUDICATIONS. THE RIGHT TO APPEAL IS STATUTORY RIGHT AND IT CAN BE CIRCUMSCRIBED BY THE CONDITIONS IN THE GRANT. IF THE STATUTE GIVES A RIGHT TO APPEAL UPON CERTAIN CONDITIONS, IT IS UPON FULFILLMENT OF THOSE CONDITIONS THA T THE RIGHT BECOMES VESTED IN AND EXERCISABLE BY THE APPELLANT. HERE THE ASSESSEES APPEAL IS DELAYED AS ALLEGED BY CIT(A) AND WITHOUT ADMITTING THE APPEAL HE HAS ADJUDICATED THE SAME ON MERITS. ONCE THE APPEAL IS NOT ADMITTED NOTHING IS PENDING BEFORE H IM. A JUDGMENT OF HONBLE BOMBAY HIGH COURT (UNDER THE OLD ACT OF 1922) IN THE CASE OF CIT VS. MYSORE IRON & STEEL WORKS (1949) 17 ITR 478 (BOM), WHEREIN IT IS HELD AS UNDER: NOW, THE SCHEME UNDER SECTIONS 30 AND 31 OF THE ACT IS FAIRLY CLEAR. AN ASSE SSEE HAS A STATUTORY RIGHT TO PRESENT AN APPEAL WITHIN THIRTY DAYS WITHOUT ANY ORDER BEING REQUIRED FROM THE APPELLATE ASSISTANT COMMISSIONER FOR ADMISSION OF THAT APPEAL. BUT IF THE TIME PRESCRIBED EXPIRES, THEN THAT STATUTORY RIGHT TO PRESENT AN APPEAL G OES ; AND AN APPEAL CAN ONLY BE ENTERTAINED PROVIDED IT IS ADMITTED BY THE APPELLATE ASSISTANT COMMISSIONER AFTER CONDEMNING THE DELAY. THEREFORE BEFORE AN APPEAL COULD BE ADMITTED IN THIS CASE, AN ORDER FROM THE APPELLATE ASSISTANT COMMISSIONER WAS REQUIS ITE THAT THE DELAY HAD BEEN CONDONED, AND IT WAS ONLY ON SUCH AN ORDER BEING MADE THAT THE APPEAL COULD BE ENTERTAINED BY THE APPELLATE ASSISTANT COMMISSIONER. NOW SECTION 31 DEALS ONLY WITH SUCH APPEALS WHICH ARE I.T.A. NO.: 2548, 2549 AND 2550/DEL/13 ASSESSMENT YEARS: 2006 - 07, 2007 - 08 AND 2008 - 09 PAGE 7 OF 9 PRESENTED WITHIN THE PRESCRIBED PERIOD OR ADMITTED AFTER THE DELAY HAS BEEN CONDONED, AND THE PROCEDURE LAID DOWN IN SECTION 31 WITH REGARD TO THE HEARING OF APPEALS ONLY APPLIES TO SUCH APPEALS. THEREFORE, IN MY OPINION, WHEN THE APPELLATE ASSISTANT COMMISSIONER REFUSED TO CONDONE THE DELAY, THER E WAS NO APPEAL BEFORE HIM WHICH HE COULD HEAR AND DISPOSE OF AS PROVIDED UNDER SECTION 31 OF THE ACT. SECTION 33 THEN GIVES THE RIGHT OF APPEAL TO THE ASSESSEE FROM AN ORDER MADE BY THE APPELLATE ASSISTANT COMMISSIONER EITHER UNDER SECTION 28 OR UNDER SEC TION 31. THEREFORE THE LEGISLATURE DID NOT GIVE THE RIGHT OF APPEAL TO THE ASSESSEE AGAINST AN ORDER MADE BY THE APPELLATE ASSISTANT COMMISSIONER UNDER SECTION 30 OF THE ACT. NOW MR. BANAJI HAS CONTENDED THAT IN REFUSING TO CONDONE THE DELAY, THE APPELL ATE ASSISTANT COMMISSIONER HAS REALLY DISMISSED HIS APPEAL AND CONFIRMED THE ORDER OF ASSESSMENT. IN MY OPINION, THAT IS AN ENTIRELY ERRONEOUS CONTENTION BECAUSE THE APPELLATE ASSISTANT COMMISSIONER CAN ONLY CONFIRM AN ASSESSMENT AND MAKE AN ORDER OF CONFI RMATION OR DISMISSAL OF THE APPEAL PROVIDED THE APPEAL IS PRESENTED WITHIN TIME OR BEEN ADMITTED AFTER CONDONATION OF DELAY AND IS HEARD AND DISPOSED OF ON MERITS. IN THIS CASE WE DO NOT REACH THE STAGE OF SECTION 31 AT ALL. THE APPEAL NEVER CAME TO BE ADM ITTED, AND NO QUESTION CAN POSSIBLY ARISE OF AN ORDER MADE BY THE APPELLATE ASSISTANT COMMISSIONER CONFIRMING THE ASSESSMENT MADE BY THE INCOME - TAX OFFICER. MR. BANAJI HAS RELIED ON TWO JUDGMENTS OF THE PATNA HIGH COURT WHICH, IN MY OPINION, REALLY HAVE NO BEARING ON THE FACTS BEFORE US. ONE IS KUNWARJI ANANDA V. COMMISSIONER OF INCOME - TAX, BIHAR AND ORISSA (1). THERE A FULL BENCH OF THE PATNA HIGH COURT CONSIDERED AN ORDER MADE BY THE ASSISTANT COMMISSIONER THAT THE APPEAL DID NOT LIE BECAUSE IT FELL UN DER SECTION 23(4) OF THE OLD INCOME - TAX ACT ; AND THE COURT HELD THAT SUCH AN ORDER FELL UNDER SECTION 31 OF THE OLD ACT AS IT WAS AN ORDER DISPOSING OF THE APPEAL. NOW, IT IS IMPORTANT TO NOTE THAT IN THAT CASE THE APPEAL WAS ADMITTED. IT WAS WITHIN TIME, AND AFTER IT WAS ADMITTED, A PRELIMINARY ISSUE WAS RAISED AS TO WHETHER THE APPEAL LAY AS IT FELL UNDER SECTION 23(4) OF THE OLD INCOME - TAX ACT. IT WAS FROM THE ORDER ON THE PRELIMINARY POINT THAT AN APPEAL WAS PREFERRED TO THE COMMISSIONER, AND ON THOSE FACTS THAT COURT HELD THAT IT WAS AN ORDER UNDER SECTION 31 OF THE OLD ACT. BUT AS I HAVE POINTED OUT EARLIER, IN THE CASE BEFORE US THERE IS NO QUESTION OF THE APPEAL BEING DISPOSED OF EITHER ON THE I.T.A. NO.: 2548, 2549 AND 2550/DEL/13 ASSESSMENT YEARS: 2006 - 07, 2007 - 08 AND 2008 - 09 PAGE 8 OF 9 PRELIMINARY POINT OR ON MERITS, BECAUSE THE APPEAL WAS N EVER ADMITTED. THEN THERE IS THE CASE OF MAHARANI GYAN MANJARI KUARI V. COMMISSIONER OF INCOME - TAX, BIHAR AND ORISSA (2). THAT WAS A CASE WHERE THE ASSESSEE HAD FAILED TO PREFER AN APPEAL IN THE PRESCRIBED FORM TO THE APPELLATE ASSISTANT COMMISSIONER OF INCOME - TAX, AND THE APPELLATE ASSISTANT COMMISSIONER REFUSED TO ADMIT THE APPEAL HOLDING THAT THE APPEAL WAS NOT IN THE PRESCRIBED FORM. THE PATNA HIGH COURT MERELY FOLLOWED THE EARLIER DECISION OF THEIR OWN COURT TO WHICH I HAVE REFERRED AND CAME TO THE CONCLUSION THAT THE ORDER MADE BY THE APPELLATE ASSISTANT COMMISSIONER WAS AN ORDER UNDER SECTION 31. WE HAVE LOOKED IN VAIN THROUGH THIS JUDGMENT TO FIND ANY REASON SUGGESTED WHY THE ORDER MADE BY THE APPELLATE ASSISTANT COMMISSIONER REFUSING TO ENTERTAIN THE APPEAL BECAUSE IT WAS NOT IN PROPER FORM FELL UNDER SECTION 31 OF THE OLD ACT. WITH RESPECT TO THE PATNA HIGH COURT, WE CANNOT ACCEPT THAT DECISION IF THE EFFECT OF THE DECISION IS THAT EVEN THOUGH AN APPELLATE ASSISTANT COMMISSIONER MAY REFUSE TO EN TERTAIN AN APPEAL, THAT ORDER SHOULD BE DEEMED TO BE AN ORDER DISPOSING OF THE APPEAL UNDER SECTION 31 AS IF THE APPEAL HAD BEEN ADMITTED. BUT THERE IS A DIRECT DECISION OF THE ALLAHABAD HIGH COURT, AND THAT IS REPORTED IN SHIVNATH PRASAD V. COMMISSIONER O F INCOME - TAX, CENTRAL AND UNITED PROVINCES (1). ALTHOUGH THE CASE WAS UNDER THE OLD ACT, IT DEALT WITH THE VERY QUESTION WITH WHICH WE ARE DEALING NOW AND THERE ALSO THE ASSISTANT COMMISSIONER HAD REFUSED TO CONDONE THE DELAY AND THE ALLAHABAD HIGH COURT H ELD THAT THE ORDER MADE BY THE ASSISTANT COMMISSIONER WAS NOT UNDER SECTION 31 BUT IT WAS AN ORDER MADE UNDER SECTION 30 AND, THEREFORE, NO APPEAL LAY TO THE APPELLATE TRIBUNAL. WE, WITH RESPECT, ENTIRELY AGREE WITH THE VIEW TAKEN BY THE ALLAHABAD HIGH COU RT AND ALSO THE REASONING ON WHICH THAT DECISION IS BASED. THE RESULT IS THAT WE MUST HOLD THAT THERE IS NO APPEAL FROM THE ORDER OF THE APPELLATE ASSISTANT COMMISSIONER REFUSING TO CONDONE THE DELAY UNDER SECTION 30, SUBSECTION (2), OF THE INCOME - TAX A CT. IN VIEW OF THE ABOVE DECISION OF HONBLE BOMBAY HIGH COURT, WE ARE OF THE VIEW THAT THE CIT(A), ONCE NOT ADMITTED THE APPEAL AS BARRED BY LIMITATION, HE SHOULD NOT HAVE ADJUDICATED ON MERITS. THE FINDINGS GIVEN BY CIT(A) ON MERITS WILL HAVE NO BEA RING ON FRESH ADJUDICATION BY CIT(A), IN THE SET ASIDE APPELLATE PROCEEDINGS. .. I.T.A. NO.: 2548, 2549 AND 2550/DEL/13 ASSESSMENT YEARS: 2006 - 07, 2007 - 08 AND 2008 - 09 PAGE 9 OF 9 6. WE ARE IN CONSIDERED AGREEMENT WITH THE VIEWS SO EXPRESSED BY THE COORDINATE BENCH AND WE ADOPT THE SAME. AS FOR THE OTHER ISSUES RAISED IN THESE APPEALS, L EARNED COUNS EL FOR THE ASSESSE HAS FAIRLY SUBMITTED THAT HE DOES NOT WISH TO PURSUE THE APPEAL BEYOND VACATION OF THE OBSERVATIONS OF THE CIT(A) ON MERITS OF THE CASE. IN THIS VIEW OF THE MATTER, OTHER GROUNDS OF APPEAL REQUIRE NO ADJUDICATION AND ARE DISMISSED AS NOT PRESSED. WITH THESE OBSER VATIONS AND SUBJECT TO THE LEARNED CIT(A) S OBSERVATION S ON MERITS BEING EXPUNGED, WE UPHOLD THE DISMISSAL OF THESE APPEALS BY THE CIT(A). 7. IN THE RESULTS, AND WITH THE RIDER SET OUT ABOVE, ALL THE THREE APPEALS ARE DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON 30 TH DAY OF DECEMBER, 2014. SD/XX SD/XX A. T. VARKEY PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) NEW DELHI , THE 30 TH DAY OF DECEMBER , 2014 COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI
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