Joint commissioner of Income tax, Bangalore V. Vijaya Bank, Bangalore

MA 69/BANG/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4648 (ITAT-BANGALORE)
• Duration Of Justice: 6 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 18-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K SRIHARI
• Keywords: Period of limitation
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER MISC.PETN.NO S . 69 & 70 /BANG/20 16 (IN ITA NOS.389 & 390 / BANG/20 09 ) (ASSESSMENT YEAR S : 20 04 - 05 & 2005 - 06 ) JOINT COMMISSIONER OF INCOME - TAX (LTU), BANGALORE. PETITIONER VS . M/S.VIJAYA BANK, NO.41/2, M.G.ROAD, BANGALORE - 560001. PA NO.AAACV 4791 J RESPONDENT PETITIONER BY: SHRI P.K.SRIHARI, ADDL.CIT. RESPONDENT BY: S HRI S.ANANTHAN, CA. DATE OF HEARING : 29/07/2016 DATE OF PRONOUNCEMENT: 19 /08/2016 O R D E R PER INTURI RAMA RAO , AM : THE PRESENT MISCELLANEOUS PETITIONS ARE FILED BY THE REVENUE SEEKING RESTORATION OF THE APPEALS FILED BY THE REVENUE FOR T HE ASSESSMENT YEARS 2004 - 05 AND 2005 - 06 WHICH W ERE DISMISSED BY THIS TRIBUNAL VIDE ORDER DATED 04/08/2009 IN ITA NOS.389 & 390/BANG/2009 IN LIMINE FOR WANT OF APPROVAL FROM THE HIGH POWER COMMITTEE ON DISPUTES [COD] WHICH IS REQUIRED IN TERMS OF THE DECISI ON OF THE HON BLE SUPREME COURT IN THE CASE OF MP NO S . 69 & 70 /BANG/20 16 PAGE 2 OF 5 ONGC & ANOTHER VS. COLLECTOR, CENTRAL EXCISE (1992) 104 CTR 31. THE LEARNED DEPARTMENTAL REPRESENTATIVE URGED THAT IN VIEW OF THE SUBSEQUENT DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF ELECTRONICS CO RPORATION OF INDIA LTD. VS. UNION OF INDIA & OTHERS (2011) 332 ITR 58 (SC) , APPROVAL FROM COD IS NO LONGER REQUIRED. HENCE, IT IS SUBMITTED THAT THE APPEALS MAY BE RESTORED. 2. WE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE P RESENT MISCELLANEOUS PETITIONS, THE ISSUE IS WHETHER TRIBUNAL CAN RESTORE THE DISMISSED APPEALS, EXERCISING THE POWER UNDER THE PROVISIONS OF SECTION 254(2) OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT], THE DISMISSED FOR WA NT OF APPROVAL FROM THE COD, WHICH IS REQUIRED AT THE RELEVANT TIME, IN VIEW OF THE SUBSEQUENT DECISION OF THE HON BLE SUPREME COURT IN ELECTRONICS CORPORATION OF INDIA LTD. (SUPRA) WHEREIN IT WAS HELD THAT APPROVAL FROM THE COD IS NO LONGER REQUIRED TO PR OSECUTE DISPUTE AMONGST THE DEPARTMENTS OF GOVERNMENT AND A PUBLIC SECTOR UNDERTAKING INTER SE. AN IDENTICAL ISSUE HAD COME UP BEFORE THE HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. AIR INDIA LTD. (2016) 383 ITR 284 WHEREIN THE HON BLE HIGH COURT HAD UPHELD REJECTION OF SUCH MISCELLANEOUS PETITION, AS TIME - BARRED, AND HELD AS FOLLOWS: MP NO S . 69 & 70 /BANG/20 16 PAGE 3 OF 5 8. BEFORE DEALING WITH THE GRIEVANCE OF THE REVENUE, IT MAY BE NECESSARY TO RE - PRODUCE RULE 12 OF THE ITAT RULES WHICH READS AS UNDER: - R. 12. REJECTION OR AMENDMENT OF MEMORANDUM OF APPEAL THE TRIBUNAL MAY REJECT A MEMORANDUM OF APPEAL, IF IT IS NOT IN THE PRESCRIBED FORM OR RETURN IT FOR BEING AMENDED WITHIN SUCH TIME AS IT MAY ALLOW. ON REPRESENTATION AFTER SUCH AMENDMENT, THE MEMORANDUM SHALL BE SIGNED AND DATED BY THE OFFICER COMPETENT TO MAKE AN ENDORSEMENT UNDER RULE 7. RULE 7 OF THE ITAT RULES READS AS UNDER : - R. 7. DATE OF PRESENTATION OF APPEALS THE REGISTRAR, OR AS THE CASE MAY BE, THE AUTHORIZED OFFICER, SHALL ENDORSE ON EVERY MEMORANDUM OF APPEAL THE DAT E ON WHICH IT IS PRESENTED OR DEEMED TO HAVE BEEN PRESENTED UNDER RULE 6 AND SHALL SIGN THE ENDORSEMENT. 9. IT WOULD BE NOTICED THAT THE POWER UNDER RULE 12 OF ITAT RULES IS TO EITHER REJECT A MEMORANDUM OF APPEAL OR RETURN IT FOR CORRECTION, IF THE MEM ORANDUM OF APPEAL IS NOT IN THE PRESCRIBED FORM. IT IS ONLY AFTER THE MEMORANDUM OF APPEAL IS PUT IN THE PRESCRIBED FORM, THAT IT HAS TO BE RE - PRESENTED FOR ACCEPTANCE UNDER RULE 7 OF THE ITAT RULES. IN THIS CASE, WE SPECIFICALLY ASKED MR. TEJVEER SINGH, W HETHER THE APPEAL FILED BY THE REVENUE BEFORE THE TRIBUNAL WAS NOT IN ACCORDANCE WITH THE PRESCRIBED FORM AND HE INFORMED US THAT IT WAS IN THE PRESCRIBED FORM. THEREFORE, ON THE AFORESAID FACTS, NO OCCASION TO EXERCISE POWERS UNDER RULE 12 OF THE ITAT RUL ES CAN ARISE FOR EITHER THE REJECTION OR RETURN OF THE MEMORANDUM OF APPEAL. THIS IS IN FACT NOT DONE. 10. HOWEVER, THE REVENUE WHILE NOT DISPUTING THE ABOVE POSITION YET URGE THAT THE ORDER DATED 6 NOVEMBER 2007 DISMISSING ITS APPEAL PASSED BY THE TRIBU NAL PURPORTEDLY UNDER SECTION 252(1) OF THE ACT IS IN EFFECT AND SUBSTANCE AN ORDER PASSED UNDER RULE 12 OF THE ITAT RULES. WE ARE UNABLE TO UNDERSTAND HOW RULE 12OF THE ITAT RULES CAN HAVE ANY APPLICATION, FOR SIMPLE REASON THAT THE SINE QUO NON FOR ITS A PPLICATION IS THAT THE MEMORANDUM OF APPEAL IS NOT IN THE PRESCRIBED FORM. ADMITTEDLY IN THIS CASE THE MEMORANDUM OF APPEAL IS IN THE PRESCRIBED FORM. THEREFORE THE APPEAL FILED BY THE REVENUE ITSELF WAS LISTED FOR HEARING ON 6 NOVEMBER 2007 BEFORE A DIVIS ION BENCH OF THE TRIBUNAL LEADING TO AN ORDER OF EVEN DATE UNDER SECTION 254(1) OF THE ACT. THIS ORDER DATED 6 NOVEMBER, 2007 IS AN APPEALABLE ORDER UNDER SECTION 260 - A OF THE ACT. 11. ONE MORE ASPECT WHICH CANNOT BE LOST SIGHT OF IS THAT WHENEVER AN ME MORANDUM OF APPEAL IS REJECTED UNDER RULE 12 OF THE ITAT RULES, THEN IT HAS TO BE RE - PRESENTED UNDER RULE 7 OF THE ITAT RULES. IN THIS CASE UNDISPUTEDLY NO MP NO S . 69 & 70 /BANG/20 16 PAGE 4 OF 5 MEMORANDUM OF APPEAL HAS BEEN RE - PRESENTED BY THE REVENUE UNDER RULE 7 OF THE ITAT RULES. THIS ALSO IS INDICATIVE OF THE FACT THAT THE ORDER DATED 6 NOVEMBER 2007 OF THE TRIBUNAL HAS NOT BEEN EXERCISED UNDER RULE 12 OF THE ITAT RULES BUT UNDER SECTION 254(1) OF THE ACT. MOREOVER THE PERIOD FROM THE DATE OF REJECTION OF THE MEMORANDUM OF APPEAL TILL THE D ATE OF RE - PRESENTATION AFTER AMENDING THE MEMORANDUM OF APPEAL WOULD NOT BE EXCLUDED WHILE COMPUTING THE PERIOD OF LIMITATION AS PROVIDED UNDER THE ACT FOR THE PURPOSES OF FILING AN APPEAL BEFORE THE TRIBUNAL. THEREFORE IF THE ORDER DATED 6 NOVEMBER 2007 W AS AN ORDER UNDER RULE 12 OF THE ITAT RULES THEN NOT ONLY THERE OUGHT TO HAVE BEEN A REPRESENTATION OF THE APPEAL ON THE PART OF THE APPELLANT - REVENUE BUT ALSO AN EXPLANATION FOR THE PERIOD OF THE DELAY WHILE COMPUTING THE PERIOD OF LIMITATION FOR FILING OF THE APPEAL AFTER AMENDING ITS MEMORANDUM OF APPEAL. THIS HAS ALSO NOT BEEN DONE BY THE APPELLANT - REVENUE. IN THE ABSENCE OF SUCH AN APPLICATION, THE APPELLANTS BEFORE THE TRIBUNAL WOULD BE FREE IN CASES WHERE THE MEMORANDUM OF APPEAL IS REJECTED UNDER RULE 12 OF THE ITAT RULES TO FILE/ REPRESENT A COMPETENT APPEAL LONG AFTER THE PERIOD OF LIMITATION TO FILE AN APPEAL HAS EXPIRED FROM THE ORDER OF THE LOWER AUTHORITY EVEN AFTER EXCLUDING THE PERIOD WHEN THE APPEAL WAS FIRST FILED AND REJECTED UNDER RULE1 2 OF THE ITAT RULES. THIS COULD NEVER BE THE OBJECTIVE AS IT WOULD RESULT NOT ONLY IN STALE ISSUES BEING REACTIVATED AND DISRUPTING FINALITY ACQUIRED TO QUASI JUDICIAL ORDERS BY PASSAGE OF TIME. CONSEQUENTLY, NO FAULT CAN BE FOUND WITH THE IMPUGNED ORDER D ATED 8 FEBRUARY 2013 OF THE TRIBUNAL REJECTING THE APPLICATION FOR RECALL OF THE ORDER DATED 6 NOVEMBER 2007 AS BEING TIME BARRED. 12. THE RELIANCE BY THE APPELLANT - REVENUE UPON THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN DY. CIT V/S. AIRPORT AUTH ORITY OF INDIA 86 DTR 222 TO CONTEND THAT RULE 12 OF THE ITAT RULES APPLIES, DOES NOT ADVANCE ITS CAUSE. THIS FOR THE REASON AS POINTED OUT HEREIN ABOVE THAT IN THE PRESENT FACTS RULE 12 OF THE ITAT RULES HAS NOT BEEN INVOKED WHILE DISMISSING THE APPELLANT - REVENUE'S APPEAL BY ORDER DATED 6 NOVEMBER 2007. MOREOVER THE RELIANCE BY THE DELHI BENCH OF THE TRIBUNAL UPON ORDER 41 RULE 19 OF THE CIVIL PROCEDURE CODE IS INAPPROPRIATE AS IT DOES NOT DEAL WITH THE SITUATION ARISING IN THE PRESENT FACTS. ORDER 41 RULE 3 OF THE CIVIL PROCEDURE CODE IS SIMILAR TO RULE 12 OF THE ITAT RULES AND IT HAS BEEN ADVERTED TO BY THE DELHI BENCH OF THE TRIBUNAL, YET AS POINTED OUT ABOVE THE SAME HAS NOT BEEN INVOKED IN THIS CASE WHILE PASSING THE ORDER DATED 6 NOVEMBER 2007 DISMISS ING THE APPEAL OF THE REVENUE. IT MAY BE POINTED OUT THAT IN THE PRESENT FACTS THE APPEAL WAS REJECTED BY THE ORDER DATED 6 NOVEMBER 2007 AND NOT THE MEMORANDUM OF APPEAL AS WAS THE BASIS OF THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL. THE ALTERNATIVE HYPOTHETICAL BASIS IN THE ORDER OF THE DELHI BENCH OF THE TRIBUNAL THAT IF THE APPROVAL WAS GRANTED BY THE COD AFTER FOUR YEARS FROM THE ORDER OF THE TRIBUNAL THEN THE TRIBUNAL WOULD HAVE MP NO S . 69 & 70 /BANG/20 16 PAGE 5 OF 5 RECALLED THE ORDER AND IN THIS CASE THE SUPREME COURT ORDER IN ELECT RONICS CORPORATION (SUPRA) HAS DONE AWAY WITH SUCH A REQUIREMENT STANDS ON THE SAME FOOTING, IS, IN OUR VIEW NOT CORRECT. IN ANY CASE WHETHER SUCH AN APPLICATION FOR RECALL OF AN ORDER ON THE BASIS OF THE COD AFTER FOUR YEARS FROM AN ORDER OF THE TRIBUNAL DISMISSING THE APPEAL IS SUSTAINABLE IS NOT AN ISSUE ARISING FOR OUR CONSIDERATION AND THEREFORE NOT BEING DEALT WITH IN THESE FACTS. RESPECTFULLY, FOLLOWING THE JUDGMENT OF THE HON BLE BOMBAY HIGH COURT , WE DISMISS THE MISCELLANEOUS PETITIONS FILED BY TH E REVENUE. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH AUGUST , 2016 S D/ - S D/ - (VIJAY PAL RAO) (INTURI RAMA RAO) JUDICIAL MEMBER A CCOUNTANT MEMBER PLACE : BANGALORE D A T E D : 19 /0 8 /2016 E KSRINIVASULU ,SPS COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE T RIBUNAL BANGALORE