TaxTMI 
TaxTMI 
2005 (10) TMI 67
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....e on or about May 7, 1985. The petitioner is a non-resident, being a citizen of the United Kingdom, presently residing in Monaco in the South of France. Respondent No. 1 is the Commissioner of Income-tax, who is the designated authority under section 87(b)(i) of the Finance (No. 2) Act, 1998 ("the Finance Act" for short), vide order-cum-intimation dated March 10, 1999 rejected the applications-cum-declarations made by the petitioner under the Kar Vivad Samadhan Scheme enacted under Chapter IV of the Finance Act. The deceased had suffered best judgment assessments under the Act, inter alia, for the assessment years 1969-70 to 1978-79, 1981-82 and 1984-85 to 1986-87 along with penalties, inter alia, under sections 18(1)(a), 18(1)(b) and 18(1)(c) of the Act. Being aggrieved by the aforesaid assessment orders, as advised by the chartered accountant, the petitioner filed appeals before the Commissioner of Wealth-tax (Appeals) against all the assessment orders suffered by the deceased under the Act along with applications seeking condonation of delay in filing the appeals. All the appeals, filed by the petitioner, against the orders of assessment and penalties passed against the de....
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....aid submission made on behalf of the petitioner did not find favour with respondent No. 1, who was pleased to reject all the declarations made by the petitioner under the Kar Vivad Samadhan Scheme by the impugned order-cum-intimation dated March 10, 1999, holding that the appeals filed by the petitioner before the Tribunal, against the order of the Commissioner of Wealth-tax (Appeals), rejecting the plea of the petitioner for condonation of delay, did not amount to appeals "pending" against the orders of assessment. The aforesaid order dated March 10, 1999, rejecting the second declarations dated January 28, 1999, made under the Kar Vivad Samadhan Scheme is a subject matter of challenge in this petition filed under article 226 of the Constitution of India. Submissions: Mr. Joshi, learned counsel appearing for the petitioner submits that respondent No. 1 has grossly erred in alleging that the petitioner's appeals before the Tribunal against the order dated December 29, 1998, passed by the Commissioner of Wealth-tax (Appeals), were only against the orders rejecting the petitioner's plea for condonation of delay as such those appeals were neither appeals in the eye of law nor....
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....rt on the merits, itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal." He also relied upon the judgment of the apex court in the case of Board of Revenue v. Raj Brothers Agencies [1973] 31 STC 434; [1973] 3 SCR 492 wherein the apex court approved the decision of the Madras High Court (Raj Brothers Agencies v. Board of Revenue [1972] 30 STC 410) which had applied the principle stated in Mela Ram and Sons case [1956] 29 ITR 607 (SC). Mr. Joshi, learned counsel for the petitioner also placed reliance on the judgment of the apex court in the case of Essar Constructions v. N.P. Rama Krishna Reddy [2000] 6 SCC 94, wherein the apex court observed that a suit which is dismissed on the ground of limitation may be appealed against as a decree. By the same token, it was held that an application under section 30 of the Arbitration Act, which was dismissed on the ground of limitation, was nothing but refusal to set aside the award. Mr. Joshi pressed into service the judgment of a two-judge Bench of the apex court in the case of CIT v. Shatrusailya Digvijaysingh Jadeja [2005] 277 ITR 435 (SC), wherein the ape....
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....el for the petitioner, submits that in the Tribunal there is no procedure to admit an appeal and then to hear it on the merits. In other words, as per his submission, there is no stage of admission of appeal under the rules of the Tribunal. He submits that all appeals, which are validly presented before the Tribunal, by implication are treated as admitted appeals competent for hearing on the merits. This factual position is not in dispute. Learned counsel for the petitioner, while reacting to the submissions made by learned counsel for the Revenue relying on the judgment of the apex court in Computwel Systems P. Ltd. [2003] 260 ITR 86, submits that this judgment was based on the peculiar facts of that particular case. He submits, in that case, the original revision petition filed before the original authority itself was barred by limitation. Ultimately, rejection of the prayer for condonation of delay resulted in dismissal of the revision petition. As such the revision petition in question was no revision petition in the eye of law. According to him, in the case at hand, the appeals themselves were against the order refusing to condone the delay. The appeals were neither barred ....
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....nder section 95(i)(c)? Emerging principles: Before proceeding to consider the above issue, let us first examine the principles emerging from various judgments of the apex court cited at the Bar. The first judgment of the apex court cited in line is in the case of Mela Ram and Sons [1956] 29 ITR 607, wherein a specific question involved was whether an appeal accompanied by an application for condonation of delay in filing the appeal was an appeal in the eye of law, when the application for condonation of delay in riling the appeal was rejected and, consequently, the appeal resulted in dismissal as being barred by limitation. The apex court relying upon the observations made by the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey [1932] 59 Indian Appeals 283, 287 (PC) held that the appeal presented out of time is an appeal, and an order dismissing it as time-barred is one passed in appeal. The observations made by the Privy Council read as under: "there is no definition of appeal in the Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate court, asking it to set aside or revise a decision of a subordinate court, i....
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....mitation was held as refusal to set aside the award. The apex court further went on to observe that if section 39(1)(vi) and section 17 of the Arbitration Act are read together, it would follow that the application for setting aside the award which was rejected on the ground that it was delayed and that no sufficient cause had been made out under section 5 of the Limitation Act would be an appealable order. In the case of Shatrusailya Digvijaysingh Jadeja [2005] 277 ITR 435, the apex court was dealing with the Kar Vivad Samadhan Scheme wherein, in respect of the assessment years 1984-85 to 1991-92, the assessee was held liable to pay tax under assessment orders passed under section 143(3) of the Income-tax Act, 1961 and also under the assessment orders passed under the Wealth-tax Act, 1957. Being aggrieved by the assessment orders, the assessee therein, had preferred appeals to the Commissioner (Appeals). The appeals were, however, dismissed in the year 1992-93 as the appellants did not make pre-deposit and failed to pay self-assessed tax. The Finance Act introduced the Kar Vivad Samadhan Scheme. The appellants filed appeals and revisions on December 28 and 29, 1998, along with ....
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....ssed. On a petition for special leave to appeal the apex court while affirming the decision of the Commissioner and dismissing the petition for special leave held that the revision petition could be said to be pending only if the delay had been condoned and, since the delay was not condoned, the revision petition was not pending on the date of the declaration and the declaration could not be entertained. One more judgment of the apex court in the case of Commissioner of Central Excise v. Smithkline Beecham Co. Health C. Ltd. [2003] 157 ELT 497, needs reference, wherein a two-judge Bench of the apex court in its short order held that in the event of dismissal of an appeal by the Commissioner (Appeals) for failure to comply with the pre-deposit direction, the Tribunal on appeal cannot go into the merits of the case and has to confine itself only to the issue whether pre-deposit was required or not. Consequently, the observations made by the Tribunal in its order on the merits were set aside and the proceedings were remitted back to the Commissioner (Appeals) for consideration on the merits. In other words, the appeal though restricted in its scope was held to be tenable. In the....
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....ex court but no such conflict was noticed by it. In the case at hand, the very appeals, which were pending before the Tribunal, were well within limitation though they were against the order refusing to condone delay. Such appeals were competent appeals, in view of the judgments of the apex court in the case of Essar Constructions [2000] 6 SCC 94 and Smithkline Beecham Co. Health C. Ltd. [2003] 157 ELT 497 (SC), though the scope of the appeal was restricted. The appeals filed before the Tribunal were very much competent and tenable. Ultimately, the appeals have been allowed. The delay in filing the appeals before the first appellate authority came to be condoned. As such presentation of the appeals filed before the first appellate authority against the orders giving rise to tax arrears became competent. Had there been a refusal to condone the delay by the Tribunal, the orders rejecting the declarations filed by the petitioner under the Kar Vivad Samadhan Scheme would have been justified in view of the decision of the apex court in the case of Computwel Systems P. Ltd. [2003] 260 ITR 86. The factual scenario of the present case at hand is altogether different than what was not....