2018 (5) TMI 1552 - HC - Income Tax

Whether the application for condonation of delay is required - date of service or order to the appellant - Held that - it is the duty on the Tribunal to communicate the order to the person, who is entitled to lodge the appeal - the issue is to be dealt with reference to the facts in this case - the appeal is lodged within 120 days - thus the appeal cannot be treated as barred by limitation - hence the application for condonation of delay is closed as unnecessary

Issues Involved:
1. Timeliness of the appeal filed by the appellant.
2. Application for condonation of delay.
3. Interpretation of Section 260A of the Income Tax Act, 1961.
4. Communication and receipt of the Tribunal's order.
5. Knowledge of the order through various proceedings.
6. Relevance of Circulars issued by the Department.
7. Legal framework and procedural requirements under the Income Tax Act.

Detailed Analysis:

1. Timeliness of the Appeal:
The primary issue was whether the appeal filed by the Director of Income Tax (International Taxation) was within the statutory period of 120 days as prescribed under Section 260A of the Income Tax Act, 1961. The appellant contended that the appeal was filed on 13.07.2011, within 120 days from the date of receipt of the Tribunal's order on 16.03.2011. The respondent/assessee argued that the order was dispatched on 09.09.2009 and should be considered as received on the same date, making the appeal time-barred.

2. Application for Condonation of Delay:
The appellant also filed an application seeking condonation of a 653-day delay as a precautionary measure. However, the court found this application unnecessary based on their interpretation of the receipt date of the Tribunal's order.

3. Interpretation of Section 260A:
Section 260A allows an appeal to the High Court within 120 days from the date the order is received by the Principal Chief Commissioner, Chief Commissioner, Principal Commissioner, or Commissioner. The court emphasized that the receipt date is crucial and must be understood as the date when the order is actually received by the concerned authority.

4. Communication and Receipt of the Tribunal's Order:
The court examined the evidence provided by the appellant, including registers showing no entry of the order being received on 09.09.2009. The court found the appellant's claim credible and noted the contradictions in the respondent's statements regarding the dispatch and receipt dates. The court concluded that the order was received on 16.03.2011.

5. Knowledge of the Order Through Various Proceedings:
The respondent/assessee argued that the appellant had knowledge of the order through various legal proceedings and should be imputed with such knowledge. However, the court held that actual receipt of the order, as mandated by the statute, is necessary for the appeal period to commence. Knowledge through other proceedings does not substitute the formal receipt of the order.

6. Relevance of Circulars Issued by the Department:
The respondent/assessee referred to Circulars dated 24.05.2011 and 11.08.2011 to argue for timely filing of appeals and notification of jurisdiction changes. The court found these Circulars inapplicable as they were issued after the relevant period and did not mandate any statutory obligation affecting the appeal's timeliness.

7. Legal Framework and Procedural Requirements:
The court emphasized that under the Income Tax Act, the Tribunal is required to communicate the order to the concerned parties. The statutory framework does not require the aggrieved party to obtain a certified copy of the order for appeal purposes. The court concluded that since the order was received on 16.03.2011 and the appeal was filed within 120 days, the appeal was within the prescribed time limit.

Conclusion:
The court held that the appeal was filed within the statutory period and dismissed the application for condonation of delay as unnecessary. The appeal was listed for hearing on admission on 22.05.2018.

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