TaxTMI 
TaxTMI 
2025 (7) TMI 319
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....ngst the two applications, Miscellaneous Civil Application No. 491 of 2024 is filed by Neelam Ajit Phatarpekar, an assessee, one of the respondents in the proceedings instituted by the Revenue, being aggrieved by the order of the Commissioner of Income Tax, whereas Miscellaneous Civil Application No. 492 of 2024 is filed by her as legal heir of late Ajit Phatarpekar, assessed to tax under Income Tax Act, 1961 along with her son, Aniket Ajit Phatarpekar. 2. The Applicant along with her husband, were assessed to tax for the Assessment Year 2009-2010 and they having filed the Appeals No. 88 and 89 before the Commissioner of Income Tax (Appeals), their appeals came to be allowed. This gave a cause for the Revenue to approach the Appellate Tribunal, Panaji Bench, by filing Income Tax Appeal No. 169 and 170/PAN/2016. The Income Tax Appellate Tribunal heard the Appeals of the Revenue, where the Assessees were represented by Shri Sandeep Bhandare, a Chartered Accountant, and the departmental representative represented the Revenue. It is pertinent to note that Shri Ajit Phatarpekar passed away on 02.04.2016, which is during the pendency of the Appeals and when the decision was pronounced....
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....er the tax matter, who demised on 02.04.2016 before the Appeals could be disposed of and it is in these circumstances she was unaware of the order being passed by the Tribunal until she was served with a recovery notice. From the date of receipt of the order dated 14.09.2016, Mr Gandhi would submit that the Appeal is filed after 40 days' delay and the cause being bona fide, it deserve to be condoned. 5. Ms Susan Linhares, the learned Counsel appearing for the Revenue, has, however, vehemently opposed the application by submitting that it is incorrect to say that there is delay of 40 days in filing the application as according to the Revenue, the Appeal has been filed after a delay of 2961 days (8 years and 41 days). The application is opposed by filing an affidavit, which assert that the applicant was very much aware of the order dated 14.09.2016 as she, along with her husband, were represented before the Tribunal by Shri Sandeep Bhandare, their authorised representative and who appeared and advanced submissions on their behalf. It is stated that, since the Tribunal by common order dated 14.09.2016 disposed of the application filed by the Revenue, she cannot claim ignorance of t....
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....id factual background, the question that arises before us for consideration is whether the copy of the order passed by the Tribunal when served upon the Chartered Accountant is sufficient service and whether it can be construed as 'copy received by the assesse/applicant'. Ms Linhares, in support of her submissions would place reliance upon the decision of Allahabad High Court in the case of Sultanpur Kshetriya Gramin Bank v/s. Joint Commissioner Of Income Tax in Income Tax Appeal Defective No. 221 of 2005 dated 29.01.2010. On the other hand, Mr Gandhi would place reliance upon the decision of the High Court of Orissa in the case of Nandram Hunatram v/s. Commissioner of Income-tax [1959] 37 ITR 500 and also the decision in the case of Director of Income-tax (international Taxation) v. Hyundai Heavy Industries Co. Ltd [2018] 407 ITR 129. 9. Arguments of the respective Counsel will have to be appreciated in the background of the precedence cited before us, with reference to the statutory scheme involved. Section 260(A) is a provision for appeal to the High Court and it contemplate the appeal to be filed within a period of 120 days from the date on which the order appealed agains....
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....eading of the provision of the Act along with Rule 35 clearly provide that after the order is passed, the Tribunal shall communicate the order to the assessee and there is not escape from this provision. 12. It is the stand adopted by the Revenue that communication of the order passed by ITAT, Panaji, to the Chartered Accountant who was representing the assessee in the proceedings before the Tribunal is akin to the communication to the assessee, i.e. the Applicant. We, however, disagree with the said proposition, for the reason which we would reveal in the paragraph to follow. 13. The assessee is permitted to be represented in any proceedings before any Income Tax Authorities or the Appellate Tribunal by an authorised representative, which would include Chartered Accountant or a legal practitioner who is entitled to practice in any civil Courts in India or even by a person related to the assessee in any manner. However, from the specific provision in form of Section 254, intention of the Legislature can be clearly discerned that the decision of the Appellate Tribunal shall be communicated to the assessee and to the Principal Commissioner/Revenue. Sub-section (3) of Section....
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....al contention, the Allahabad High Court invoked Section 282 of the Income Tax Act, relating to service of notice generally and inferred that the said provision would show that there are two modes of service that are possible; by post or as if it were summon issued by Court under Code of Civil Procedure, 1908. While deciding the issue whether copy of the order was validly served or it is deemed to have been served upon the Appellant, as it was received by his Counsel and was collected by the assessee as per his convenience, the High Court invoked Order 5 Rule 12 of CPC and expressed that since a Vakalatnama filed by the Counsel authorised him to receive all documents on behalf of the assesse/appellant and therefore since the Counsel was authorised representative of the assessee, in terms of Order 5 Rule 12, the service effected upon him amounted to a service upon the assessee himself. The following conclusion was recorded by the High Court: "The submission of the learned counsel for the appellant that in view of the plain language of Section 260 A of the Act, service should be affected on the assessee is without any substance. Its Sub-section (2) (a) provides that an ....
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.... of the Allahabad High Court, in our view, is not applicable to the present case where it is the case of the Revenue that the Chartered Accountant had accepted the order of the ITAT. 17. At this stage, we must also take note of Order 3 of the Code of Civil Procedure which deals with recognized agents and pleaders, and the recognised agents as per Rule 2 include (a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of a party; (b) persons carrying on trade or business for and in the name of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance. Rule 3 clearly specify that processes served on the recognised agent of a party shall be effected as if the same has been served on the party in person, unless the Court otherwise directs. The Chartered Accountant since is not also authorised specifically to accept copy of the order, cannot be said to be a recognised agent of the Assessee. 18. The Orissa High Court while dealing with a similar issue where the assessee engaged a lawyer at the time of submitting memorandum of appeal to the Tribunal but had stat....