TaxTMI 
TaxTMI 
2017 (7) TMI 864
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.... of section 253(1)(d) read with section 253(2A) of the Act, whereas the Commissioner has been given right to object to 'any direction of DRP', but the right to appeal 'against directions of DRP' is not given to the assessee as is given to the Commissioner in section 253(2A) of the Act. 3. That the present appeal filed by the assessee before this Hon'ble Tribunal is non-maintainable and is liable to be dismissed by Ld. Tribunal in-limini. 4. That the Respondent craves to be allowed to add any fresh grounds of cross-objections and/or delete or amend any of the grounds of cross-objections. In view of the non-maintainability of appeal led by the assessee, for want of strict non-availability of jurisdiction with this Hon'ble Tribunal, it is prayed that this Hon'ble Tribunal may kindly be pleased to dismiss the appeal filed by the assessee." 2. At the outset, the 'Cross Objections' filed by the revenue is barred by limitation in terms of section 253(4),as there is a delay of 169 days as per the statutory time limit for filing the cross objection. The Dy.CIT, Circle 13(1), New Delhi (herein refer to as DCIT), along with the said Cross Objection has ....
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....n support of the application for condonation of delay is not duly attested by the Oath Commissioner. Hence, the same cannot be entertained. On perusal of the record, we find that the affidavit filed by the A.O. in support of the explanation for delay in filing the CO by 169 days is not duly attested and hence the same cannot be entertained. The Revenue is thus directed to remove the defect so that the application for condonation of delay may be heard and disposed off by the Bench." 2.2. Thereafter the Ld. DCIT filed another so-called affidavit,the contents of which reads as under:- "HON'BLE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH In the matter of Mrs. New Delhi Television Limited for the Assessment Year 2009-10. Affidavit for Condonation of Delay in filing the Cross Objections against ITA No. 1212/Del/2014 filed by M/s. New Delhi Television Limited against Assessment Order passed by Assistant Commissioner of Income Tax, Circle 13(1), New Delhi. I, Bhupinderjit Kumar, aged about 47 years, son of Late Shri Parkash Chand, presently posted as Deputy Commissioner of Income Tax. Circle-18(1), New Delhi do solemnly affirm and state on oath as under:- 1) That the....
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....ION I, Bhupinderjit Kumar, the above named deponent do hereby verify that the contents of para 1 to 9 are true to the best of my knowledge and belief. Sd/: Deponent Date: 12.04.2016 Place: New Delhi : Stamped by: Notary Public, New Delhi (India): : 12th April, 2016: 3. Before us the Ld. Special counsel for the Revenue, Shri Girish Dave submitted that the reasons stated in the petition as well as in the affidavit for the condonation of delay should be favourably considered and delay should be condoned for the reason that, firstly, the issue which has been raised in the 'Cross Objection' is a jurisdictional issue and challenges the very validity of entertaining the Assessee's appeal by this Tribunal; secondly, the revenue cannot be precluded from raising this issue before this Tribunal even without cross objection; and lastly, reasons cited for not filling the appeal by the DCIT falls in the realm of 'reasonable cause' and hence delay should be condoned. On merits of the issue raised in the Cross Objections a detail written submission has been fled before us. 4 On the other hand the Ld. Senior counsel, Shri C.S. Agarwal appearing on behalf of the assessee, str....
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.... the grounds thereof are stated". 5.1. Thus, if a person chooses to rely on an affidavit for relying on certain facts, then such an affidavit should clearly express how much is the statement based on the deponent's knowledge and how much is the statement of his belief and the grounds or belief must be stated with sufficient particularity so that the courts can safely act upon the deponent's belief. From the reading of the aforementioned affidavit of para numbers 1 to 6, it can be seen that, there is only narration of facts which are already on record. But para 7 states that the deponent has "for good and sufficient reasons, extremely preoccupied with sensitive cases being dealt with by him and where there is pending of an ongoing litigation up to the Hon'ble Supreme Court having substantial revenue implication, andhe was unable to move the cross objection within the time under section 253(4) of the Act." Though the deponent has verified that all the paras are true to the best of his knowledge and belief, however, the averments made in Para 7 do not contain any precise statement of fact or the exact nature of his involvement which can lead to a belief that deponent was unable to ....
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....cation who is personally known to me). Such an identification by the authorised officer is an important limb of the affidavit which is lacking in this case. 5.3 Another very important aspect as pointed out by the ld. senior counsel is that, there is no administration of oath or affirmation by the notary. It is incumbent that the affirmation of oath has to be certified by the person administrating the oath stating the contents which have been deposed before him, date and place. This is the mandatory requirement as per section 139 of CPC which reads as under. "139. Oath on affidavit by whom to be administered - In the case of any affidavit under this Code - (a) Any Court or Magistrate, or (aa) any notary appointed under the Notaries Act, 1952 (53 of 1952); or) (b) Any officer or other person whom a High Court may appoint in this behalf, or (c) Any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf, May administer the oath to the deponent. Thus, in the affidavit the aforementioned authorities has to administer the oath of the deponent by the person who is authorized to do so in. If ....