Commissioner Of Income Tax I vs Unknown on 20 April, 2009

       

  

  

 
 
    In the High Court of Judicature at Madras

Dated : 20.04.2009

Coram :-

THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN
and
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH 

Tax Case (Appeal) No.264 of 2009


Commissioner of Income Tax I
Chennai. 								Appellant

v.

M/s.Five Star Marine 
Exports (P) Limited
No.55, Venkatesa Street
Chindadripet
Chennai  600 002. 						Respondent



	Tax Case Appeal filed under section 260A of the Income Tax Act against the order dated 18.9.2008 of the Income Tax Appellate Tribunal, Madras 'A' Bench in I.T.A.No.814/Mds/2005.


			For Appellant :   Mrs.Pushya Sitaraman,
						   Sr.Standing Cousnel
						   for Income-tax.
	 
  JUDGMNET
(Judgment of the Court was delivered by
K.RAVIRAJA PANDIAN, J.)
	The appeal is at the instance of the revenue against the order dated 18.9.2008 of the Income Tax Appellate Tribunal, Madras 'A' Bench in I.T.A.No.814/Mds/2005 relating to the assessment year 2001-02 by formulating the following questions of law:
	"1. Whether on the facts and circumstances of the case, the Tribunal was right in remitting the matter to the assessing officer to await the outcome of the writ petition, without deciding whether the delay in filing the first appeal was condonable?
	2. Whether the Tribunal can straightaway go into the merits of the case, where the lower appellate authority has dismissed the appeal on grounds of delay and not on merits?

	2. The facts of the case are as follows:
	The assessee is engaged in the business of export of sea food. The assessing officer has made an addition on account of DEPB expenses and donations made by the assessee in his assessment order dated 29.1.2004. Aggrieved by the order of the assessing officer, the assessee filed an appeal before the Commissioner of Income Tax (Appeals) with a delay of 255 days. The Commissioner of Income-tax (Appeals) did not accept the reason given by the assessee at the time taken in pursuing a rectification petition before the assessing officer, as he found that the assessee had taken a further period of six months even after the receipt of the rectification order. The appeal was dismissed on the ground  of barred by limitation without going into the merits of the case. Aggrieved by the same, the assessee filed an appeal before the Income-tax Appellate Tribunal, wherein it was brought to the notice of the Tribunal that the amendment brought about by the Taxation Laws Amendment Act, 2004 in the provisions of Section 80HHC has been challenged before various High Courts and the jurisdictional High Court has also admitted a writ petition in W.P.No.9031 of 2006 and pending for consideration. In that view of the matter, the Tribunal set aside the order of the Commissioner (Appeals) and remitted back the matter to the assessing officer to pass appropriate order after the decision rendered by the High Court in the writ petition. The correctness of the same is now canvassed in this appeal on the ground that in the appeal before the Tribunal, the correctness of the order of the Commissioner of Income-tax (Appeals) in rejecting the application to condone the delay was only questioned  and it has not been argued on merits. When such being the position, the Tribunal would not have set aside the order and remitted back the matter to the assessing officer with a direction to await for the decision of the High Court in the writ petition pending consideration.

	3. We heard the argument of the learned counsel for the revenue and perused the material on record. 

	4. As could be seen from the order of the Tribunal, it could be seen that only the Departmental representative stated that a similar issue has been set aside by the Tribunal, Chennai Bench directing the assessing officer to decide the issue in dispute after decision of the High Court in the aforesaid case. It is also further recorded by the Tribunal that the proposition was put up by both the parties and both the parties agreed that the issue in dispute has been set aside to the file of the assessing officer to decide the same after final order on the issue is decided by the jurisdictional High Court. 

	5. Now learned counsel for the revenue contended before us that in the appeal before the Tribunal, what was argued is the correctness of the order of the Commissioner (Appeals) rejecting the application filed to condone the delay in filing the appeal. Hence, the Tribunal would have set aside the order of assessment.

	6. A similar issue in an appeal before the Tribunal against the Appellate Assistant Commissioner, who refused to  condone the delay in presentation and also against the order refusing the condone the delay in revision was considered by the Division Bench of this Court in a pari materia provision in the Sales Tax Act in the case of STATE OF TAMIL NADU VS. P.M.MADHAVAN NAIR AND OTHERS, (1982) 49STC 244, wherein it was held by a Division bench of this Court that refusal  to condone delay would tantamount to confirming the order of assessment. Hence, the  appeal is maintainable and the appeal can be decided on merits for which proposition the Division Bench has also taken into consideration of the order of the Supreme Court in the case of MELA RAM AND SONS VS. COMMISSIONER OF INCOME TAX, PUNJAB, (1956) XXIX ITR 667, wherein the three Judges Bench of the Supreme Court having regard to Section 30(2) of the old Income-tax Act held that there was no sufficient reason for excusing delay and rejecting the appeal under Section 32 of the Income-tax Act as time-barred is an order passed under Section 31 and an appeal lies from that order to the Appellate Tribunal and the Tribunal can well go into the merits of the case as the order of the Commissioner (Appeals) would tantamount to confirming  the order of assessment. 

	7. In view of the above said decisions, we do not find that the Tribunal has committed any error in setting aside the matter and remitting it back to the assessing officer with a direction to pass final order as per the outcome of the decision of the High Court. Further,  the learned Departmental representative has agreed before the Tribunal that the issue similar to the one  in dispute has been set aside to the file of the assessing officer to decide the same after final order on the issue is decided by the jurisdictional High Court. As a matter of fact, the remittal order in a similar issue was brought to the notice of the Tribunal only by the Departmental representative. In such a situation, we do not find any reason to entertain the appeal and the appeal is liable to dismissed and accordingly the same is dismissed.
	

				       	 (K.R.P.,J.)       (M.M.S.,J.)
							     20.04.2009
Index:Yes
Internet:Yes
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K.RAVIRAJA PANDIAN,J.

and
M.M.SUNDRESH,J

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TC (A)No.264 of 2009

20.04.2009