2010 (1) TMI 695 - HC - Income Tax

Condonation of delay u/s 5 of Limitation Act, 1963 on the ground a copy of order was served to Representative counsel not Appellant and Representative counsel by mistake forget to communicate appellant. - Held that - in view of the recent Full Bench decision of the court CIT v. Mohd. Farooq (2009 -TMI - 34498 - ALLAHABAD HIGH COURT) an application under section 5 of the Limitation Act for condonation of delay in filing the appeal is not maintainable. - So far as the cases relied upon by the appellant are concerned, they were delivered under different statutes and cannot be pressed into service in view of specific provisions in this regard under sections 282 and 288 of the Income-tax Act, therefore, need not be discussed. - decided against the Assessee.

Summary

Issues:
Condonation of delay in filing income-tax appeal under section 260A of the Income-tax Act, 1961.

Analysis:
1. The application under section 5 of the Limitation Act sought condonation of delay in filing an income-tax appeal against an order dated November 25, 2004, for the assessment year 1997-98, reported to be 48 days late.

2. The appellant argued no delay in filing the appeal, stating the order was not served according to rule 35 of the Income-tax (Appellate Tribunal) Rules. The appellant's counsel received the order but failed to inform the appellant promptly.

3. The Department contended that service on the counsel was valid as per the vakalatnama executed by the appellant-bank. The authorized representative's receipt of the order was deemed sufficient service.

4. The court analyzed section 282 of the Act, emphasizing service on the authorized representative as valid. The court referred to Order 5, rule 12 of the Code of Civil Procedure, highlighting the authority of the counsel to accept service.

5. The court dismissed the appellant's argument that service should be on the assessee directly, stating that service on the authorized agent, i.e., the counsel, was legally acceptable.

6. The court cited precedents to support the validity of service on the authorized representative, emphasizing the importance of empowerment to accept service.

7. The court rejected the appellant's reliance on certain cases under different statutes, emphasizing the specific provisions of the Income-tax Act.

8. Concluding, the court dismissed the application for condonation of delay, stating that the appeal was time-barred from the date of receipt of the order, ensuring a definite starting point for the limitation period.

9. The court highlighted that allowing the assessee to delay collecting the order would be against judicial norms and lead to a miscarriage of justice.

10. Ultimately, the court found no merit in the application and dismissed it, consequently dismissing the appeal as time-barred.