2014 (9) TMI 1212 - AT - Income Tax

Reopening of assessment u/s 147 - AO jurisdiction to issue notice - applicability of section 292B - HELD THAT - Revenue has waited for the dismissal of the appeals by the ITAT and thereafter the revenue filed fresh appeals after delay of over 4 years. As a matter of fact even after receipt of the said order of the ITAT, the department has preferred appeal before the Hon ble High Court of Calcutta, but the same has also been dismissed. The plea that dismissal of appeal by the tribunal and the Hon ble High Court can give a person fresh cause of action circumventing the limitation period prescribed is not sustainable. Hence, now the department cannot come forward and claim that there is a mistake on the part of the revenue for not filing proper appeals 4 years ago. Hence, the delay of four year cannot be condoned on the facts and circumstances of the case. Already dismissed the assessee s appeal on the count of lack of jurisdiction. The tribunal has also considered the argument that section 292B can not be invoked as fundamental infirmities are not curable u/s. 292 B of the Act. As a matter of fact, the condonation of delay in this case would tantamount to unsettle the earlier order of the tribunal, which is certainly not permissible as per law. Furthermore, it is noted that the Hon ble High Court of Calcutta has also dismissed the appeal by the revenue against the ITAT order. Hence, our action of condoning the delay of 4 years will also have the effect of rendering the Hon ble High Court s order as infructuous. This will be gross indiscipline on our part. Moreover, the case laws as relied on by the ld. Counsel of the assessee support the case of the assessee In these circumstances, in our considered opinion on the facts and circumstances of the case of the case the delay in filing the appeal over of over 4 years cannot be condoned. Hence, the appeals filed by the revenue are dismissed in limine.

Summary

Issues Involved:
1. Delay in filing of appeals by the Revenue.
2. Jurisdiction of the Assessing Officer (AO) filing the appeal.
3. Applicability of Section 292B of the Income Tax Act.
4. Condonation of delay by the Tribunal.
5. Cross objections by the Assessee.

Detailed Analysis:

1. Delay in Filing of Appeals by the Revenue:
The Revenue filed appeals with a delay of 1488 and 1477 days. No formal affidavit for condonation of delay was filed. The Revenue's representative pointed out a note seeking condonation, explaining that the delay was due to the transfer of jurisdiction from ACIT, Circle-39, Kolkata to ITO, Ward-44(2), Kolkata, which caused confusion and delay in filing the appeal.

2. Jurisdiction of the Assessing Officer Filing the Appeal:
The Tribunal had previously dismissed the Revenue's appeals on the ground that the ACIT, Circle-39, Kolkata, did not have jurisdiction over the case when the appeal was filed. This dismissal was based on a CBDT Notification dated 30.07.2002, which transferred jurisdiction to ITO, Ward-44(2), Kolkata. The Tribunal relied on the judgment of the Hon'ble jurisdictional High Court in the case of West Bengal Electricity Board Vs. DCIT [278 ITR 218 (Cal)].

3. Applicability of Section 292B of the Income Tax Act:
The Revenue argued that the appeal should be treated as valid under Section 292B, which allows for the curing of procedural defects. However, the Tribunal noted that fundamental jurisdictional infirmities are not curable under Section 292B, citing several judicial precedents, including Sisir Kumar vs. CIT [170 ITR 80 (Ker)], Peerulal Mohanlal [257 ITR 198 (Raj.)], and others.

4. Condonation of Delay by the Tribunal:
The Tribunal examined whether there was a reasonable cause for the delay. It was noted that the Tribunal had already dismissed the appeals for lack of jurisdiction and that the Revenue did not act with due diligence to correct the filing error. The Tribunal emphasized that condoning the delay would unsettle the earlier order and render the Hon'ble High Court's dismissal of the Revenue's appeal infructuous. The Tribunal cited various judgments, including the Hon'ble Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd AIR 1962 SC 361, which held that a cause for delay that could have been avoided with due care and attention is not sufficient for condonation.

5. Cross Objections by the Assessee:
Since the Tribunal dismissed the Revenue's appeals on the grounds of non-condonation of delay, the cross objections filed by the Assessee were also dismissed.

Conclusion:
The appeals by the Revenue were dismissed due to the inordinate delay in filing and lack of jurisdiction by the ACIT, Circle-39, Kolkata. The Tribunal held that fundamental jurisdictional defects are not curable under Section 292B and that condoning the delay would contravene judicial discipline and the earlier orders of the Tribunal and the Hon'ble High Court. Consequently, the cross objections by the Assessee were also dismissed. The order was pronounced in the open court on 15/09/2014.