DCIT Corporate Circle 2(2), CHENNAI V. Integrated Enterprises (India) Ltd., CHENNAI

ITA 2875/CHNY/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 3917 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 27-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M S NETHRAPALJCITD R
• Assessee Lawyers: S SRIDHAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: CHENNAI , , ( BEFORE SHRI GEORGE MATHAN , JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./ ITA NO.2875/CHNY/2017 /ASSESSMENT YEAR: 2008-09 THE DEPUTY THE COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-2(2), ROOM NO.512,WANAPARTHY BLOCK, CHENNAI 600 034. VS. M/S.INTEGRATED ENTERPRISES (INDIA) LTD., NO.5A,5 TH FLOOR, KENCES TOWERS, 1,RAMAKRISHNA STREET, T.NAGAR,CHENNAI 600 017. [ PAN: AACCI 1509 F ] ( * /APPELLANT) ( +,* /RESPONDENT) * - / APPELLANT BY : MR.M.S.NETHRAPAL,JCIT,D.R +,* - /RESPONDENT BY : MR.S.SRIDHAR,ADVOCATE - /DATE OF HEARING : 20.08.2019 - /DATE OF PRONOUNCEMENT : 20.08.2019 / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-6, CHENNAI, IN ITA NO.25/C.I.T(A)- 6/2010-11 DATED 20.09.2017 FOR THE ASSESSMENT YEAR 2008-09. ITA NO.2875/CHNY/2017 :- 2 -: 2. MR.M.S.NETHRAPAL REPRESENTED ON BEHALF OF THE RE VENUE AND MR.S.SRIDHAR REPRESENTED ON BEHALF OF THE ASSESSEE . 3. THE APPEAL FILED BY THE REVENUE IS DELAYED BY T HREE DAYS. THE REVENUE HAS NOT FILED AFFIDAVIT IN ITS PROPER FORM. THE REVENUE HAD BEEN ASKED TO FILE THE AFFIDAVIT IN STAMP PAPER, BUT THE AFFIDAVIT HAS BEEN FILED BY SHRI R.BHOOPATHI, DEPUTY THE COMMISSIONER OF INC OME TAX, CORPORATE RANGE-2(2), CHENNAI-34 ON A PLAIN PAPER. 4. AN AFFIDAVIT IS A DECLARATION OF FACTS MADE IN WRITING AND SWORN BEFORE A PERSON HAVING THE AUTHORITY TO ADMINISTER OATH. ALL AFFIDAVITS ARE VERIFIED STATEMENTS AND PRINTED ON STAMP PAPERS OF DIFFERENT DENOMINATIONS. ACCORDING TO THE INDIAN LAWS, AN AFF IDAVIT CAN BE USED TO PROVE A FACT IN A COURT OF LAW PROVIDED THE COURT O RDERS IT. 4.1 FURTHER, RULE-10 OF THE INCOME TAX APPELLATE TR IBUNAL RULES, 1963 PROVIDES FOR FILING OF AFFIDAVITS WHEREIN IT IS SPE CIFICALLY MENTIONED THAT: WHERE A FACT WHICH CANNOT BE BORNE OUT BY, OR IS CONTRARY TO, THE RECORD IS ALLEGED, IT SHALL BE STATED CLEARLY A ND CONCISELY AND SUPPORTED BY A DULY SWORN AFFIDAVIT. 4.2 MOREOVER, SINCE AFFIDAVITS ARE NOT INCLUDED IN THE DEFINITION OF EVIDENCE IN THE INDIAN EVIDENCE ACT, THEY CAN BE USED AS EVIDENCE ONLY WHEN THE COURT FINDS IT REASONABLE TO INVOKE THE PR OVISIONS OF ITA NO.2875/CHNY/2017 :- 3 -: ORDER-19 OF THE CIVIL PROCEDURE CODE. THIS PROVISIO N IS HOWEVER, SUBJECT TO THE RIGHT OF THE OPPOSITE PARTY TO PRODUCE THE D EPONENT FOR CROSS VERIFICATION. 4.3 FURTHERMORE, AFFIDAVIT ON STAMP PAPERS ARE ON NON JUDICIAL STAMP PAPER, WHICH ARE ADMINISTERED ON OATH BEFORE A NOTARY APPOINTED BY THE STATE GOVERNMENT, AND STAMP DUTY ARE PAID AS PE R STAMP ACT. THE SECOND CATEGORY OF AFFIDAVITS, WHICH ARE ADMINISTERED ON OATH BEFORE OATH COMMISSIONER, WHO ARE APPOINTED BY THE HIGH CO URT, AND IT IS WRITTEN ON PLAIN PAPER AND STAMP DUTY ARE EXEMPTED BY THE STAMP ACT, AND IF DUTY IS IMPOSED FOR STAMP DUTY IN AFFIDAVITS TO BE USED IN THE COURT IN JUDICIAL FUNCTIONS ADHESIVE COURT FEES ARE PAID. 5. IN THE PRESENT CASE, THE AFFIDAVIT FILED BY SHR I R.BHOOPATHI IS ON A PLAIN PAPER NEITHER NOTARIZED, NOR ADMINISTERED ON OATH, NOR THE NECESSARY ADHESIVE COURT FEES ARE PAID. THIS BEING SO, THE AFFIDAVIT FILED IS NEITHER AN AFFIDAVIT FOR THE PURPOSE OF CONDONING T HE DELAY NOR IS AN AFFIDAVIT AS PER THE REQUIREMENTS FOR THE PURPOSE U NDER RULE-10 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963. EFFECTI VELY WHAT HAS BEEN DONE IS THAT UNDER THE GUISE OF AN AFFIDAVIT, THE O FFICER HAS ONLY FILED A LETTER SEEKING CONDONATION OF DELAY, WHICH IS NOT P ERMISSIBLE UNDER ANY OF THE PROVISIONS OF THE LAW, NOR RULE-10 OF THE INCOM E TAX APPELLATE TRIBUNAL RULES, 1963. CONSEQUENTLY, THE APPEAL FIL ED BY THE REVENUE STANDS DISMISSED FOR DEFECTS UNCURED BY APPLYING TH E PRINCIPLES LAID DOWN ITA NO.2875/CHNY/2017 :- 4 -: BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF PRASAD PRODUCTIONS P. LTD. VS. INCOME-TAX APPELLATE TRIBUN AL [1997] 226 ITR 778 (MAD). 6. IN THE RESULT, THE APPEAL OF REVENUE STANDS DIS MISSED FOR DEFECTS UNCURED. 7. THIS ORDER, HOWEVER, DOES NOT PRECLUDE THE REVE NUE FROM FILING A FRESH APPEAL IN ACCORDANCE WITH LAW. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSIO N OF HEARING ON THE 20 TH AUGUST, 2019 IN CHENNAI. SD/- SD/- ( ) ( INTURI RAMA RAO ) /ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) /JUDICIAL MEMBER /CHENNAI, 4 /DATED: 20 TH AUGUST, 2019. K S SUNDARAM - +56 76 /COPY TO: 1. * /APPELLANT 4. 8 /CIT 2. +,* /RESPONDENT 5. 6 + /DR 3. 8 ( ) /CIT(A) 6. /GF