TaxTMI 
TaxTMI 
TaxTMI 
2016 (11) TMI 1049
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.... Appeal within the time prescribed by law. 2. In order to help focus on the issue to be decided, it will be necessary to make note of a few dates: (i) The impugned Order of the Income Tax Appellate Tribunal in respect of the assessment year 1999-2000 and 2000-2001 was passed on 17th February, 2010. The present Cross Objection pertains to A.Y. 2000-2001; (ii) Being aggrieved by the order of the Tribunal, the Revenue filed its appeal before this Court on 30th June, 2010 being Income Tax Appeal (Lodging) No.1589 of 2010. (iii) The Department's appeal came to be served on the applicant-assessee on 10th August, 2010. (iv) The appeal appeared on board on 23rd August, 2010, apparently it was listed under the caption of "Covered Matter". 3. Both Revenue and the applicant were represented. The order of the Court reads as follows:- "PC : By Consent. Stand over to 30/08/2010." 4. On 30th October, 2010 both parties were represented and by consent the matter came to be adjourned to 13th September, 2010. On 13th September, 2010 by consent, the matter was adjourned to 29th September, 2010 to be placed along with Cross Objection (Lodging) No.24 of 2010. On 29th September, 2010 b....
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....ged on 9th September, 2010 itself under Lodging No.25 of 2010. It was thereafter taken on "file" by the registry on 9th November, 2010 pursuant to the order dated 4th October, 2010 granting four weeks time to remove office objections. Thus, it is the case of the applicant that in view of the fact that it had notice of the hearing it was entitled to file the Cross Objection which must now be dealt with in accordance with law. In the course of his submissions, we pointed out to Mr. Joshi the decision of the Supreme Court in Mahadev Govind Gharge and others v/s. Special Land Acquisition Officer, Upper Krishna Project, Kamkhandi, Karnataka (2011) 6 SCC 321 . The observations of the Supreme Court in the said order and specially in paragraph 60 reads as follows:- "Having analytically examined the provisions of Order 41 Rule 22, we may now state the principles for its application as follows: (a) The respondent in an appeal is entitled to receive a notice of hearing of the appeal as contemplated under Order 41 Rule 22 of the Code. (b) The limitation of one month for filing the crossobjection as provided under Order 41 Rule 22 of the Code shall commence from the date of service of notice....
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.... P. K. Bhimasena Rao v/s. C.Venugopal Mudali & two others 48 ILR 631 and submitted that in that case although the Appellant had to furnish security of costs and defaulted in doing so, resulting in the dismissal of the appeal for default, the Cross Objection was allowed to be proceeded with. Mr. Joshi laid emphasis on the judgment of Srinivasa Ayyangar, J. who observed that sub-clause(4) Rule 22 of Order 41 would entail that prior to the amendment of the Code of Civil Procedure there was an expression of judicial opinion that such Cross Objections could not be heard if the appeal itself was not pending. However with the introduction of clause(4) of Rule 22 of Order 41 there was no bar in hearing the Cross Objection. Accordingly, Mr. Joshi submitted that the present Cross Objection could be heard and disposed of notwithstanding the fact that the appeal itself had been rejected. 11. On behalf of the Revenue Mr. Kotangle submitted that under provisions of Order 41 Rule 22 the Cross Objection could be dealt with and disposed of provided the appeal was pending. In the present case he submitted, the appeal had been disposed of by a self-operative order passed on 4th October, 2010 and th....
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....hearing on 23rd August, 2010 on which date the applicant appeared. The matter came to be adjourned to 30th August, 2010 and thereafter to 13th September, 2010 and further dates mentioned in paragraph 3 of this order. In the meantime, the Cross Objection came to be filed on 9th September. According to Mr. Joshi the period of one month is to commence from the date of service of the notice of hearing which was initially served on 10th August, 2010 when the department served a copy of the appeal on the assessee putting them to notice that the matter would be taken up on 23rd August, 2010. On this basis, Mr. Joshi submitted that the Cross Objection was indeed in time. 14. Having heard the counsel at length on this limited aspect of maintainability of the Cross Objection, it will be useful to reproduce Order 41 Rule 22 for ease of reference:- "Upon hearing, respondent may object to decree as if he had preferred separate appeal. - (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him ion the Court below in respect of any issue ought to have been in his favour; and may also take an....
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....f, Rule 907 and 908 are relevant and the same is reproduced below:- "R. 907. When cross-objection under Order XLI, Rule 22 of C.P.Code may be treated as a cross appeal. - In case an appeal for any reason fails to come to a hearing on the merits, any cross-objection filed under Order XLI, rule 22, of the Code of Civil Procedure may be treated as a cross-appeal on the application of the respondent by whom the same was filed on such terms as the Court may think fit. R. 908. Time for filing cross-objections under Order XLI, Rule 26 of C.P. Code. - Cross-objections under Order XLI, rule 26 of the Code of Civil Procedure shall be filed within thirty days from the date on which the findings are recorded or within such further time as the Appellate Court may allow." 17. Rule 907 provides that if for any reason the appeal fails to come to a hearing on merits, any Cross Objection filed may be treated as a cross appeal and the application of the respondent by whom the same was filed on such terms of the Court may deem fit. Clause 908 provides for the time for filing the Cross Objection under Order 41 Rule 26. We are not presently concerned with the application of the said rules as i....
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....and all were scheduled for hearing on merits. The appellants committed default in complying to the orders of the Court for furnishing the security for costs and paying paper book charges. These were not the cases where the appeals were not registered for non-compliance of preliminary office objections but these were appeals scheduled to proceed on merits. In this behalf, it is useful to consider the decision of the Supreme Court in Mahadev Gharge(supra) which in paragraph 60 has observed that the respondent is a Caveator or otherwise puts in appearance and argues on merits and if the appeal is heard finally on a subsequent date, such a factual occurrence shall be deemed to be service of notice within the meaning of Order 41 Rule 22 and the period of limitation of one month would start from that date. This judgment of the Supreme Court clearly contemplates that the parties would have argued the appeal on merits and the same would be taken up for hearing on merits. The provisions of Order 41 Rule 22 enables a party to file a Cross Objection only when an appeal is filed and when the Court hears the appeal on merits. In Rajasthan High Court in Ramkripal v/s. Radheshyam and Others AIR 1....
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....e file of this Court and was dismissed for nonremoval of office objections. There was no occasion for this Court to consider the issue arising in the appeal on merits. There has not been a hearing on merits at all before the appeal came to be rejected. The record indicates that the Cross Objections nevertheless continued to remain on file since the office objections therein were removed as directed by the Court on 4th October, 2010. In the circumstances, there will be no occasion for the Revenue to be heard on merits in the appeal. We are of the opinion that the applicant had notice of "date fixed for hearing of the appeal". Even assuming Mr. Joshi is correct in his submission, the hearing of the appeal indicates that hearing would include hearing at the stage of admission and not necessarily at the final hearing of the appeal. Since there has been no hearing of the appeal on merits, it will not be possible to accept Mr. Joshi's submission that service of the appeal memo and intimation that the appeal is likely to be listed for admission before the Court on a particular date would amount to notice of the date fixed for hearing. We are of the considered opinion that the express....
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....various orders only time has been extended and repeatedly, for removal of office objections and for no other reason. In the circumstances, there is no question of any delay on the part of the applicant filing a Cross Objection. The question is whether the Cross Objection can be entertained given the fact that the appeal itself was never on the file of this Court and was never fixed for hearing. Sub-rule 4 of Rule 22 of Order 41 does not in our view assist the Applicant. 26. In our view, the answer to this would also depend upon the meaning that we give to the Rule 907 which states that if an appeal "fails" to come for hearing on merits any Cross Objection filed under Order 41 Rule 22 may be treated as a Cross appeal but on the application of the respondents. In the present case, Mr. Joshi has contended that in the even we hold against the Applicant on maintainability, the present Cross Objection may be treated as an appeal and the delay in filing the appeal be condoned. While there is nothing on record to assist us an ascertaining extent of delay, there is also no application that has been preferred before us as contemplated in Rule 904. As far as Rule 907 is concerned on proper r....