2007 (11) TMI 351 - AT - Income Tax

Tribunal Cancels Assessments; Revenue Appeals Dismissed After 2569-Day Delay Due to Lack of Jurisdiction and Negligence.

The Tribunal dismissed the Revenue's appeals due to a delay of 2569 days, citing negligence and inaction as the cause. It determined that the Assessing ... Condonation of Huge delay of 7 years and 18 days - Appeal To Commissioner(A) - Original assessments set aside by the CIT(A) - AO wrongly made fresh assessments u/s 144 r/w section 251 - CIT(A) partly allowed the appeals of the assessee. Condonation of Huge delay of 7 years and 18 days - HELD THAT:- Where no negligence, or inaction or want of bona fide can be imputed to the appellant, a liberal construction of the limitation provisions has to be made in order to advance substantial justice. Seekers of justice must come with clean hands. We do not find any reasonable cause for condoning the delay. Keeping in view the facts and circumstances of the case in our opinion the delay was due to negligence and inaction on the part of the Revenue authorities and the inordinate delay of 2569 days cannot be condoned and the appeals are dismissed as time barred. Appeal To Commissioner(A) - Original assessments set aside by the CIT(A) - AO wrongly made fresh assessments u/s 144 r/w section 251 - CIT(A) partly allowed the appeals of the assessee - HELD THAT:- We are of the opinion that the CIT(A) has set aside the assessment means that he annulled the assessment, since he has not given any direction to re-do the assessment. This view of ours is supported by the judgment of the hon'ble Calcutta High Court in the case of Fu Sheen Tannery v. ITO[2003 (4) TMI 88 - CALCUTTA HIGH COURT]. As such, the Assessing Officer has no jurisdiction to pass any further order. He is duty bound to follow the direction of the CIT(A) and he cannot sit over the order of the CIT (A), who is a superior authority. The remedy lies with the Department and he has to filed an appeal against the order of the CIT (A) if they have any grievance. In the present case, instead of filing the appeal in time against the CIT (A), the AO made a fresh assessment without jurisdiction which is against the law on the facts of the case and not sustainable in the eyes of law. Therefore, the additional ground raised by the assessee is allowed and we cancel the impugned assessment order as well as the impugned order of the CIT(A) in view of the precedents discussed above. Since we have allowed the legal issue raised by the assessee and cancelled the assessments, we refrain from going through the merits of the case and it is only academic. Accordingly, we allow the appeals of the assessee. The appeals of the Revenue become infructuous and we dismiss the same as infructuous. In the result, the Revenue's appeals are dismissed and the assessee's appeals are allowed. Issues Involved:1. Condonation of delay in filing appeals by the Revenue.2. Jurisdiction of the Assessing Officer to make fresh assessments.3. Validity of the additional ground of appeal raised by the assessee.Issue-wise Detailed Analysis:1. Condonation of Delay in Filing Appeals by the Revenue:The appeals filed by the Revenue were delayed by 2569 days. The Revenue sought condonation of delay, citing a bona fide impression that the setting aside of assessments by the Commissioner of Income-tax (Appeals) conferred jurisdiction on the Assessing Officer to make fresh assessments. The Revenue argued that recent judicial pronouncements clarified that setting aside without directions amounts to annulment, necessitating an appeal. They contended that a liberal approach should be adopted in condoning the delay to avoid substantial loss to the Revenue, referencing the Supreme Court judgment in Collector, Land Acquisition v. Mst. Katiji [1987] 167 ITR 471.The Tribunal noted that the Revenue took nearly three years after the judgment of the Calcutta High Court in Fu Sheen Tannery v. ITO [2003] 262 ITR 456 to decide on filing the appeals, indicating a lack of diligence. The Tribunal emphasized that a distinction must be made between inordinate delays and minor delays, with the former requiring a more cautious approach. The Tribunal concluded that the delay was due to negligence and inaction on the part of the Revenue authorities and dismissed the appeals as time-barred.2. Jurisdiction of the Assessing Officer to Make Fresh Assessments:The assessee argued that the Assessing Officer completed the assessment under section 144 read with section 251 without any specific direction from the Commissioner of Income-tax (Appeals). The Tribunal examined the meaning of 'set aside' and 'annul' as per Black's Law Dictionary and relevant case laws, concluding that the Commissioner of Income-tax (Appeals) had annulled the assessment without directing a fresh assessment. This interpretation was supported by the Calcutta High Court's judgment in Fu Sheen Tannery v. ITO [2003] 262 ITR 456, which held that setting aside without directions amounts to annulment.The Tribunal held that the Assessing Officer had no jurisdiction to pass any further order and should have adhered to the Commissioner of Income-tax (Appeals)'s direction. Consequently, the Tribunal canceled the impugned assessment orders and the Commissioner of Income-tax (Appeals)'s orders, as the assessments were made without jurisdiction.3. Validity of the Additional Ground of Appeal Raised by the Assessee:The assessee raised an additional ground of appeal, contending that the Assessing Officer's order under section 144 read with section 251 was without jurisdiction and thus void ab initio. The Tribunal admitted the additional ground, referencing the Supreme Court's judgment in National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383, which allows raising legal grounds for the first time before the Tribunal.The Tribunal agreed with the assessee, concluding that the Assessing Officer's actions were not justified as there were no directions for a fresh assessment from the Commissioner of Income-tax (Appeals). The Tribunal canceled the assessments and the Commissioner of Income-tax (Appeals)'s orders, allowing the assessee's appeals.Conclusion:The Tribunal dismissed the Revenue's appeals due to inordinate delay and lack of jurisdiction for fresh assessments. The assessee's appeals were allowed, and the impugned assessment orders were canceled, rendering the Revenue's cross-appeals infructuous.