TaxTMI 
TaxTMI 
2017 (3) TMI 1266
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....onal' Principal or Chief Commissioner of Income-tax (CIT) or could it include any CIT including the CIT (Judicial)? 2. The question assumes significance in light of the stand of the Revenue that unless the 'jurisdictional' CIT receives a certified copy of the order of the Income Tax Appellate Tribunal (ITAT), the limitation of 120 days within which an appeal has to be filed does not commence. It requires to be clarified at the outset that the expressions 'Revenue' and 'Department' are used interchangeably throughout the judgment. Both expressions refer to the Income Tax Department. Background facts in ITA 755 & 756 of 2015 3. In I.T.A. Nos. 755 and 756 of 2015 are appeals by the Revenue, through the Principal CIT Delhi-IV under Section 260-A of the Act against a common order dated 29th October, 2014 passed by the ITAT in a large batch of 115 appeals. Both appeals were first filed on 25th August, 2015. Para 8 of both memoranda of appeal state that the impugned order of the ITAT "was received in the office of the Appellant on 28th April, 2015". Enclosed with both the appeals was only a typed copy of the impugned order of the ITAT. The ....
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....of the impugned order was available with the CIT (Judicial) on 23rd July 2014 or with the CIT (Central) on 25th July, 2014, then the present appeal which has been filed on 14th January, 2015 was beyond 120 days from the date of the receipt of the certified copy. There was no application for condonation of delay as of that date. 6. Following this, the Revenue out of 'abundant caution' filed C. M. No. 23522 of 2015 seeking condonation of 85 days' delay in filing the appeal. Notice in the said application was issued on 14th October 2015. At that hearing, the Court's attention was drawn to its decision in CIT v. Sudhir Choudhrie (2005) 278 ITR 490 which mandated that the ITAT shall 'pronounce its orders' in open court by listing the cases for pronouncement. The Court was informed by the counsel for the Revenue that the said judgment was being scrupulously followed and ever since the ITAT has been pronouncing its orders after listing the matters for pronouncement in the cause list. The Court was further informed that as a follow up of the above judgment, there were certain changes made in the administrative side. One was that for the purposes of Section....
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....d in the Order Sheet." 9. Appendix XX to the Manual gives the proforma of the endorsement made on the order of the ITAT when forwarding it to the various parties including the assessee, the Departmental Representative (DR), the Assessing Officer (AO), the CIT (Appeals) and the CIT. Therefore, it appears that as far as the Department is concerned, the ITAT dispatches copies of its orders to at least three officers apart from the DR, one of whom is presumably the 'concerned' CIT. 10. The Court's attention was also drawn to Instruction No. 4, dated 7th May 2002 and the subsequent Instruction No. 6/2015 dated 3rd July 2015 which appear to set out the 'work jurisdiction and role' of the CIT (Judicial). It was stated that pursuant to the said instructions, one of the copies of the ITAT's order is always sent to the CIT (Judicial) in addition to the concerned CIT. If there was a change in the concerned CIT, then the onus would be on the Revenue to inform the ITAT of such change. Questions for decision by the larger Bench 11. In both matters, the Revenue relied on the decisions of Division Benches (DBs) of this Court in CIT v. Arvind Construction Co. (P)....
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....t named therein? (iii) In the context of Section 254 (3) of the Act, is there an obligation on the ITAT to send a certified copy of its order to a CIT other than the one whose details are given to it during the pendency of the appeal? Will change in the jurisdiction concerning the case of the Respondent Assessee to another CIT subsequent to the order of the ITAT have the effect of postponing the time, from which limitation would begin to run in terms of Section 260 A (2) (a) of the Act, to when such CIT receives the order of the ITAT? (iv) After the decision of this Court in CIT v. Sudhir Choudhrie (2005) 278 ITR 490, do the decisions in CIT v. Arvind Construction Co. (P.) Ltd. (1992) 193 ITR 330 and CIT v. ITAT (2000) 245 ITR 659 (Del) require to be reconsidered, explained or reconciled? (v) After the change of procedure where orders of the ITAT are pronounced in the open, is it incumbent on the Department through its DR or CIT (Judicial) to apply for a certified copy of the order of the ITAT and should limitation for the purposes of Section 260A (2) (a) be computed from the date on which such certified copy is made ready for delivery by the ITAT? (vi) Wh....
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....June 1998, Section 260A read as under: 260 A. Appeal to High Court.- (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal under this section shall be: (a) filed within one hundred and twenty days from the date on which the order appealed against is communicated to the appellant; (b) accompanied by a fee of ten thousand rupees where such appeal is filed by an assessee; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. 17. After the amendment with effect from 1st June 1998, Section 260A read as under: 260A. Appeal to High Court.- (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal before the date of establishment of the National Tax Tribunal, if the Hig....
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....done the delay in filing the appeal. There was a difference of opinion of the High Courts on whether the High Court has the power to condone the delay in filing the appeal, although Section 260A (7) (inserted by the Finance Act, 1999) stated that the provisions of the Code of Civil Procedure, 1908 ("CPC"), which related to appeals to the High Court shall "as far as may be" apply to the appeals under Section 260A. With a view to clarifying that the High Court did have such power to condone the delay, sub-section (2A) was retrospectively inserted. 21. Considering that in terms of sub-section (2A), the High Court can condone the delay for as long there is sufficient cause for not filing the appeal within 120 days, there, necessarily, has to be a strict construction of Section 260A(2). A comparison could be drawn with Section 34 of the Arbitration and Conciliation Act, 1996, Section 34 (3) of which stipulates a three-month period for filing a petition to challenge an Award. The proviso thereto limits the discretion of the Court to condone the delay beyond three months up to "a further period of 30 days, but not thereafter". The decision in CIT v. Sudhir Choudhrie 22.1 In CIT v....
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.... signed by the Bench of the Tribunal) would be the minimum requirement to the principles of natural justice. This requirement transcends all technical rules of procedure". The rational explanation was that the "pronouncement of an order would certainly put the parties at notice and they would be able to take recourse to the remedies available to them under law with some urgency, if required". 22.6 The Court in CIT v. Sudhir Choudhrie (supra) then proceeded to direct the ITAT to pronounce its judgment and orders "in open hearing and upon enlisting them for a given date." Rule 34 of the ITAT Rules 23. Following the above judgment in CIT v. Sudhir Choudhrie (supra), Rule 34 of the ITAT Rules was amended to read as under: "Order to be pronounced, signed and dated 34. (1) The order of the Bench shall be in writing and shall be signed and dated by the Members constituting it. (2) The Members constituting the Bench or, in the event of their absence by retirement or otherwise, the Vice-President, Senior Vice-President or the President may mark an order as fit for publication. (3) Where a case is referred under sub-section (4) of section 255, the order of the Member or ....
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.... to the ITAT at the time of filing the appeal or to such changed office as may be made known to the ITAT by the Department. Earlier decisions 25. There has been no decision as such interpreting the words "received by the assessee or the Principal Chief Commissioner" occurring in Section 260A (2) (a) of the Act. The date of such receipt is the trigger for the commencement of the limitation period of 120 days for filing the appeal. Reliance has been placed by the Revenue on two decisions of this Court, which were rendered in the context of Section 256 of the Act. 26.1 The first is the decision in CIT v. Arvind Construction Co. (P) Ltd (supra). One of the questions considered was whether the application by the Revenue seeking reference was barred by time. It was pointed out that the order of the ITAT under Section 256 (1) of the Act was sent to the "Chief Commissioner, Central Revenue Building". 26.2 The Assessee urged that the date on which the order was received in that office i.e., 22nd May 1989 should have been the starting point for computation of the period of limitation and if so computed, the reference application would be barred by time. The revenue, on the other ....
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....he said judgment of the ITAT. The 'concerned' CIT 29. The main thrust of the submissions of learned counsel for the Revenue is that it is only the 'concerned' CIT or Principal Commissioner of Income Tax (Pr CIT) who has the jurisdiction over the case who can be a 'party' to the appeal and not any and every CIT or Pr CIT. It is further pointed out that in the context of appeals by or against the Revenue, it is not that the Revenue as a whole that is the aggrieved party but only the concerned officer dealing with a case or having jurisdiction over the AO of the concerned case, who would be "the concerned party." Only such CIT or Pr CIT could file an appeal for the Revenue. 30. In this context, it is necessary to also refer to the allocation of work of the CITs (Judicial) and their jurisdiction. Initially, Instruction No. 4 dated 7th May 2002 specified the jurisdiction and the role of the CIT (Judicial). It was stated that the administrative decision to file the appeal before the High Court would vest with the respective administration CIT/CCIT, who would compile the databank on the question of law and ensure that there was uniformity in the stan....
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....grieved". Such a person, it was held, "must be one whose interest is affected in some possible way". It is accordingly submitted in the present case by the Revenue that it is only the jurisdictional Commissioner who can be said to be 'aggrieved' by the decision of the ITAT. Reference is also made to the decision in State of Maharashtra v. Ark Builders Pvt. Ltd. (2011) 4 SCC 616 which in the context of Arbitration and Conciliation Act, 1996 emphasised that the period of limitation under Section 34(3) of the Act would commence only "from the date on which the order/award was received by the party concerned in the manner prescribed by the law". 35. On the other hand, it is pointed out by Mr. C.S. Aggarwal, Senior counsel for the Assessee, that it is the date of pronouncement of the order which should be taken as the date on which that order is 'received' for the purposes of Section 260A(2)(a) of the Act. This is because the order is pronounced in the open and the date of pronouncement is duly notified by the ITAT. Reference is also made to Section 33 of the CPC read with Order 20, Rule 1(1) thereof, which states that the Court would pronounce the judgment in open court afte....
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....provision is to enable the filing of appeals within a period of limitation. As it is, the period of limitation (120 days) is considerably longer than in routine cases (30, 60 or a maximum of 90 days). The interpretation has to serve the purpose of not lengthening the period of limitation further, but to ensure that the time limit is strictly adhered to. Relaxation of the period of limitation in such cases has to be an exception and not the rule. The decisions in Consolidated Coffee v. Coffee Board (supra) and Shree Ishar Alloys Steels Ltd. v. Jayaswal Neco (supra) were rendered in the context of different statutes where the wording of the provisions in question dictated the result of the interpretative exercise. They are not useful in the interpretation of the word "the" which precedes the words CIT or Pr CIT in Section 260 A (2) (a) of the Act. 40. The context in which the interpretive exercise is to be undertaken is that of the statute of limitation. Usually, the commencement of limitation is that point when there is 'knowledge' of an order or judgment. In the context of Section 260A(2)(a), the question that should be asked is: "when was the Department/Revenue aware of....
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.... to extend the period of limitation beyond what is envisaged by the statute. In these very cases, the impugned order was received by a particular CIT (Judicial) and then sent to the 'concerned' CIT, who was shifted out by the time a copy reached him. Meanwhile, the period of 120 days lapsed. The period of 120 days cannot be sought to be stretched indefinitely till the 'concerned' CIT receives the order. That would then defeat the legislative purpose. 43. Viewed differently, the contextual interpretation of the expression 'receive' would be when the parties notified of the pronouncement are represented at that time in the open court. When pronounced, both parties are said to receive it. The agency which they choose for transmission to the official or executive component to authorise an appeal is not the concern of the judicial system. 44. Another context would be the absence of arbitrariness and discrimination in the manner of treatment of the parties to the litigation. Section 260 A (2) (a) applies to both, the Assessee as well as the Revenue. When it is the Assessee who is aggrieved, limitation for filing the appeal will begin to run once the Assessee through its AR ....
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.... CIT (Judicial) or any other CIT. As long as the order to be appealed against is served on an officer of the Revenue, be it a DR or a CIT (Judicial), limitation will begin to run from that date. 48. It is possible that immediately after pronouncement, the AR or the DR or both may apply for a certified copy of the order of the ITAT. In that case, the time taken for the certified copy to be readied for collection by the applicant will be excluded while computing limitation. But here again, if earlier to such date, a copy is received by a party from the ITAT, then such earlier date will be the starting point for limitation. 49. Consequently, where the order is common to several appeals, while for the assessee the starting point for limitation will be when the assessee aggrieved by such order first receives a copy thereof; for the Revenue, the date when the DR or the CIT (Judicial) first receives a copy thereof will be the starting point for limitation for all the appeals. 50. It is, therefore, not possible to accept the submission that till a particular jurisdictional CIT or Pr CIT has not received the order of the ITAT, the period of limitation for filing an appeal against t....
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....ertified copy of its order to a CIT other than the one whose details are given to it during the pendency of the appeal? Will change in the jurisdiction concerning the case of the Respondent Assessee to another CIT subsequent to the order of the ITAT have the effect of postponing the time, from which limitation would begin to run in terms of Section 260 A (2) (a) of the Act, to when such CIT receives the order of the ITAT? Ans: As far as the obligation of the ITAT under Section 254 (3) of the Act is concerned, the said obligation is satisfied once the ITAT sends a copy of an order passed by it to the Assessee as well as to the Pr CIT or the CIT or even the CIT (Judicial). The ITAT has to be simply go by the details as provided to it in the memo of parties. If there is a change concerning the jurisdiction of the CIT and it is some other CIT who has jurisdiction, it will not have the effect of postponing the commencement of the period of limitation in terms of Section 260A (2) (a) of the Act. The statute is not concerned with the internal arrangements that the Department may make by changing the jurisdiction of its officers. It is for the officer of the Department who first receive....