2003 (8) TMI 38 - HC - Income Tax

Appeal - Whether the memorandum of appeal returned by the Delhi High Court for want of territorial jurisdiction presented as such to the Himachal Pradesh High Court is proper? - We hold that no properly constituted appeal has been filed in this court and the memo of appeal filed by the appellant in the Delhi High Court as has been filed by the appellant in this court on being returned to it cannot be a substitute and hence cannot be treated as an appeal filed in this court under section 260A of the Income-tax Act - In view of the dismissal of the main appeal, the present application shall stand dismissed.

Issues involved:
1. Jurisdiction of the High Court regarding the filing of an appeal under section 260A of the Income-tax Act, 1961.
2. Interpretation of sub-section (7) of section 260A of the Income-tax Act regarding the applicability of the Code of Civil Procedure.
3. Analysis of the provisions of the Code of Civil Procedure relating to the return of plaint and its relevance to the return of a memo of appeal.
4. Determination of whether the filing of the original memo of appeal from another High Court constitutes a valid appeal in the Himachal Pradesh High Court under section 260A of the Income-tax Act.

Jurisdiction of the High Court:
The judgment pertains to a challenge against an order passed by the Income-tax Appellate Tribunal, Chandigarh Bench "B," in relation to assessment years 1992-93 and 1993-94 under the Income-tax Act, 1961. An appeal was filed under section 260A of the Act in the Delhi High Court, which later determined that it lacked territorial jurisdiction over the matter. Consequently, the Delhi High Court ordered the appellant to present the appeal in the Himachal Pradesh High Court, leading to the filing of the original memo of appeal in the Himachal Pradesh High Court.

Interpretation of sub-section (7) of section 260A:
The appellant argued that the Code of Civil Procedure would apply to appeals filed under section 260A, justifying the filing of the memo of appeal from the Delhi High Court in the Himachal Pradesh High Court. Sub-section (7) of section 260A was cited, emphasizing the application of the Code of Civil Procedure to such appeals. However, the court analyzed the specific provisions of the Code of Civil Procedure concerning the return of plaint and highlighted that these provisions do not extend to the return of a memo of appeal. The court noted that the appellant's action did not align with the requirement of law for filing a proper appeal in the Himachal Pradesh High Court.

Relevance of Code of Civil Procedure provisions:
The judgment delves into the provisions of the Code of Civil Procedure, particularly Order 7, rule 10, which deals with the return of plaint. It was emphasized that the provisions related to the return of plaint do not encompass the return of a memo of appeal. The court clarified that the appellant's submission regarding the applicability of the Code of Civil Procedure did not justify the filing of the original memo of appeal from the Delhi High Court in the Himachal Pradesh High Court.

Validity of filing the original memo of appeal:
Ultimately, the court concluded that the filing of the original memo of appeal from the Delhi High Court in the Himachal Pradesh High Court did not constitute a properly constituted appeal under section 260A of the Income-tax Act. The court dismissed the appeal filed in the Himachal Pradesh High Court under such circumstances. However, the appellant was allowed the opportunity to file a properly constituted appeal in the Himachal Pradesh High Court if advised to do so, along with an application for condonation of delay, if necessary.

Income-tax Application No.1 of 2003:
Following the dismissal of the main appeal, Income-tax Application No.1 of 2003 was also dismissed as a consequential outcome of the main appeal's dismissal.

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