2009 (9) TMI 1017 - HC - Income Tax

This appeal will be heard on the following substantial questions of law - (1) Whether on a true and proper interpretation of the provisions of Sub-section (3) of Section 40A of the Income Tax Act 1961 the Tribunal was justified in law in holding that rule 6DD of the Income Tax Rules 1962 was exhaustive of the cases/circumstances to which the exemption under the second proviso to the section applied and that the exemption was not available in any other case/circumstances? (2) Whether the Tribunal was justified in law in setting aside the order dated March 8 2007 of the Commissioner of Income Tax (Appeals) and remanding the matter for fresh examination and adjudication when all the materials for adjudicating upon the matter were before the Tribunal? Call for the records.

Summary

Issues:
1. Delay in filing the appeal and the application for condonation of delay.
2. Interpretation of provisions of Sub-section (3) of Section 40A of the Income Tax Act, 1961.
3. Justification of the Tribunal in setting aside the Commissioner of Income Tax (Appeals) order.

The judgment addresses the issue of delay in filing the appeal and the application for condonation of delay. The appellant's senior advocate argued that there was no delay as the client was entitled to a copy of the order, which was never served. The court accepted the argument, finding no delay as the order was not served on the appellant. Consequently, the application for condonation of delay was deemed redundant, and the appeal was directed to be registered if in proper form.

Moving on to the substantive issues, the first question pertains to the interpretation of Sub-section (3) of Section 40A of the Income Tax Act, 1961. The appeal raises the query of whether the Tribunal erred in holding that rule 6DD of the Income Tax Rules, 1962 exhaustively covered cases for exemption under the second proviso to the section, excluding other circumstances. This question seeks clarification on the scope and applicability of the exemption under the mentioned provisions.

The second issue challenges the Tribunal's decision to set aside the Commissioner of Income Tax (Appeals) order dated March 8, 2007, and remand the matter for fresh examination despite having all materials for adjudication. The appeal questions the justification of this action, raising concerns about the Tribunal's decision-making process and the necessity for a reevaluation of the case.

The judgment concludes by calling for the records and issuing notices to the concerned parties. It dispenses with formal service of notice as the respondent's advocate accepts the appeal notice. The appellant is instructed to prepare informal paper books within a specified timeframe for the upcoming proceedings. The parties are directed to act based on a signed copy of the order, with liberty granted to mention the appeal's readiness for hearing at the appropriate time.