TaxTMI 
TaxTMI 
2014 (9) TMI 1212
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...."In the above referred case, the Hon'ble ITAT, 'B' Bench, Kolkata passed order vide ITA Nos. 1851 & 1852(Kol) of 2002 on 18.07.2005 in the case of ACIT, Circle-39, Kolkata Vs.Mohalchand Motilal Kothari & Co. Kolkata, which was received by the CIT-XIII, Kolkata 22.08.2006. The second appeal was filed by the ACIT-39, Kolkata on 09.09.2002 against the appeal orders of the CIT(A)-XXVI, Kolkata in appeal order Nos. 0769/CIT(A)-XXVI/0102/dated 18.06.2002 and No.0769/CIT(A)-XXVI/02-03/dated 09/07/2002. The Hon'ble ITAT, 'B' Bench, Kolkata dismissed the appeal filed by the revenue on the ground that the ACIT, Circle-39, Kolkata had no jurisdiction over the case and the appeal was invalid ab initio because, as per CBDT Notification dated 30.07.2002, the jurisdiction of the case was to be transferred to ITO, Ward-44(2), Kolkata and the second appeal was filed by the ACIT-39, Kolkata after the date of issuance of the above mentioned notification of the CBDT. The assessment records were however, physically transferred to ITO, Ward -44(2), Kolkata only on 27.09.2002. The Hon'ble ITAT while dismissing the case relied on the judgment of the Hon'ble jurisdictional High Court in the cas....
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....ow, we note that fresh appeal has been filed after the delay of almost over 4 years. Now we have to examine whether there is actually reasonable cause or not for the delay. We note that earlier the tribunal vide order dated 28.07.06 had dismissed the appeals of the revenue in limine on the count of lack of proper jurisdiction after considering all the aspects and the submissions of the ld. Counsel of the assessee. The submission of the ld. Counsel of the assessee noted in the order also include the following:- . "2.1 On the above facts, the learned counsel further submitted that the CIT-XIII has admitted that the AO filing the appeal had no jurisdiction to file the appeal before the Tribunal on the date when the appeal is actually filed. He further submitted that it will be for the department to consider filing of the fresh appeal and such fresh appeal will be considered by the Tribunal in accordance with law when it comes up for hearing and the department at this moment cannot be allowed to treat this infirmity as a procedural infirmity. Sec. 292 is not applicable to cure fundamental infirmities and such infirmities are not curable u/s. 292B. Reliance was placed on the fo....
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....05 seeking permission to file appeal afresh, it could have come forward with a petition for rectification or could have filed a fresh appeal immediately on becoming aware of the above illegality even though they did not act when the order of the CIT(A) was served on the proper CIT, i.e CIT-XV on 27.9.2002. Further even after filing of the preliminary objection by the respondent in 2004, which was head at length and written objections were invited by the Hon'ble ITAT which was duly filed by the respondent on 27.4.2005 (copy in the paper book) as to why appeal filed by the stranger was void and cannot be admitted, the department did not to proceed further to make good the illegality already done in filing of the appeal. On the other hand explanation was again filed by the CIT having jurisdiction on 19.9.2005 (copy in the paper book) instead of taking proper care with due diligence by filing another appeal or by filing petition for filing a fresh appeal. Further it was also within the knowledge of the AO Cir. 39, Kol also that he did not have the jurisdiction which will be evident from the transfer memo wherein it was clearly mentioned that the penalty proceedings u/s. 271B w....
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....ere duly filed by the ACIT Cir 39 on which date the said AO had no jurisdiction. Moreover the AO cannot take the plea now that it was beyond his control since at least in Sept. 2002, when the order of CIT(A) was served on CIT-XV, the assessment records were also transferred to him but the said CIT-XV kept mum and thereafter on the date on which the AO and the Commissioner of Income-tax-XV had filed their explanations in 2004 and 2005 referred to above when they undoubtedly came to know that the appeals earlier filed were not legal. The Commissioner of Income-tax-XV was also aware of these facts since for the same year he had disposed off a petition on 21.11.2002 where he had quoted 'on perusal of the case records', which shows that he had the occasion to look into the case records. Not only that when the order of the ld.CIT(A) was served on the ld. CIT-XV as back as on 27.9.2002 no action was taken by the said CIT(A)XX and even no enquiry was made as the filing of the appeal from the Assessing Officer concerned. The department has to be more vigilant and careful in filing of the appeal as has been held in the case of CIT Vs. A Tosh & Sons (Copy of the judgement enclosed). It has to....
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....ial stage and also at the revisional stage and run the risk of proceeding with the suit without impleading the necessary parties, cannot be said to act in good faith because he cannot be said to have acted with due care and attention. Consequently, such person will not be entitled to benefit to section 14 of the Act for excluding the time spent by him in that proceeding in a fresh suit." In short case "The objection as to the maintainability of the suit was taken at the very initial stage but that was resisted and the appellant invited a decision by the dist. Munsif. Even at the stage of revision against that order in the High Court he took the risk of proceeding with the suit. This was, therefore, not a case of prosecuting the previous proceedings bonafide. But on the other hand, he deliberate did so may be for obvious reason that if he had to withdraw the suit he would have to give notice under s. 80CPC to the Government, wait for the expiry of the period of notice of two months and thereafter file a fresh suit. To avoid this he thought he would take a chance but that chance boomeranged against him. It is not a case where he prosecuted due to ignorance of law or....
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....n'ble Supreme Court restored the judgement of the trial court. Another judgement of the Hon'ble Delhi High Court in the case of Surendra Kumar Boveja Vs. CIT, Wealth Tax decided on 2.5.2006 ( a copy whereof is enclosed wherein the Hon'ble High Court has held as under:- "The Counsel for appellant has argued that in view of the observation made by Tribunal while dismissing the appeal of Revenue, the delay in filing the appeal should have been condoned. It was submitted that appellant did not prefer appeal against the order initially as he was not aware of the legal position. After the order of Tribunal he became aware of the legal position and therefore, the Tribunal should have condoned the delay. In order to get delay condoned in filing of an appeal, the party has to show sufficient cause. Sufficient cause means a cause beyond the control of the party e.g. a mistake made in good faith in respect of exercise of due care and attention. But where there is want of due care and attention or want of due diligence or sufficient cause the delay cannot be condoned. The appellant was satisfied with the relief granted by CWT(A). After being satisfied with the ....
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....lal v. Rewa Coalfields Ltd AIR 1962 SC 361 has held that the cause for the delay in filing the appeal which by due care and attention could have been avoided cannot be a sufficient cause within the meaning of limitation provision. In the judgement of Meghji Girdharilal (MP) reported in 177 ITR page 294 it has been held that no preferential treatment can be given to the Government department and if there was no confusion in filing of the appeal, delay cannot be condoned. Further the delay in this case is 1504 days. The Hon'ble Supreme Court in the case of Vedabai V Shantaram Baburao Patil 253 ITR 798 has held "In exercising discretion, under section 5 of Limitation Act the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of few days. Whereas in the former case, the consideration prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach." In the case of Hiracon India Ltd reported in 2006(SOT) it has been held that inefficien....
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....ation should be followed otherwise there is no finality of the proceedings. The Calcutta High Court in the case of Mount View Exports 258 ITR page 46 has held that no person is entitled to take advantage of his own unexplained inordinate delay or default in making an application. Similarly, it is settled law that no party is allowed to take advantage of his own wrong. In this case the department now wants to take advantage of their own wrong which should not be permitted. It has been held by the Hon'ble Supreme Court that a third party has no right to file an appeal. Ram Bhagwan Singh & Ors ( 3 SCR 957). Therefore, the actual party cannot come forward to take shelter of such illegal suit to buy time. No other reason have been given by the AO in his petition for condonation of delay. In fact there is no prayer for condonation of delay but the prayer is for recalling the earlier order and admission of the fresh appeal. It may be mentioned that the department even after receipt of the order of the ITAT considered the filing of the appeal by ACIT Circle 39 as lawful and valid and filed an appeal before the Hon'ble High Court u/s. 260A but the said ap....