2016 (3) TMI 1070 - HC - Income Tax

Condonation of delay - only ground seeking condonation of delay is that since the right of appeal has now been created, therefore, the appellant has a right of appeal against the order passed in 2008 - Held that - We are unable to agree with this proposition inasmuch as, a right of appeal is a matter of procedure that gets converted into a substantive right as a creature of statute. The appeal has to be filed within the limitation prescribed. It cannot create a retrospective right to file an appeal which did not exist in the year 2008 or even on 06.01.2009 when the order was served on the appellant. In the absence of existence of such a right, it was open to the appellant to have filed a writ petition challenging the same in 2008-09. The very same view has been taken by the Tribunal and it has declined to grant any benefit of a bona fide act as urged by the appellant. The statutory remedy of appeal having come into existence on 01.06.2015, cannot be stretched retrospectively for extending the benefit as claimed by the appellant for condoning the delay. - the appeal deserves to be rejected.

Summary

Issues:
1. Appeal questioning Tribunal's order of dismissal based on limitation.
2. Contention regarding delay and bona fide pursuit of litigation.
3. Exemption claim under Section 10 (23C) (vi) and (via) of the Income Tax Act 1961.
4. Refusal of registration under Section 12AA and appeal filed against it.
5. Grant of registration under Section 12AA and subsequent application under Section 10(23C).
6. Rejection of application under Section 10(23C) on 26.12.2008.
7. Emergence of right of appeal under Finance Act, 2015.
8. Request for waiver of limitation against the order dated 26.12.2008.
9. Interpretation of the judgment in the case of Commissioner of Income Tax Vs. Vatika Township P. Ltd.
10. Denial of benefit for condoning the delay based on retrospective application of the right of appeal.

Analysis:
1. The appeal in question challenges the Tribunal's order dated 31.12.2015, dismissing the appellant's time-barred appeal against the Chief Commissioner of Income Tax's order from 26.12.2008, citing limitation as the reason.

2. The appellant's counsel argued that there was no delay and emphasized a bona fide pursuit of litigation, suggesting that the subsequent insertion of the right of appeal should not hinder filing an appeal regarding the earlier cause of action.

3. The Department's counsel opposed the appeal, highlighting that the Chief Commissioner's order pertained to the exemption claim under Section 10 (23C) (vi) and (via) of the Income Tax Act 1961, for which no appeal was made when the order was issued in 2008.

4. Initially, the appellant's educational society sought registration under Section 12AA (1) of the Act to claim exemption under Section 11, but the application was rejected on 19.10.2007, leading to the refusal of exemption.

5. Following an appeal against the rejection, the Income Tax Appellate Tribunal granted the appeal on 31.08.2008, resulting in the issuance of a registration certificate to the society on 01.05.2008, making them eligible for exemption.

6. Subsequently, the application under Section 10(23C) for exemption was rejected on 26.12.2008, and the order was served on the appellant on 06.01.2009, at a time when no statutory right of appeal existed against such orders.

7. The right of appeal emerged from 01.06.2015 onwards through the Finance Act, 2015, introducing Clause (f) in Sub-section (1) of Section 253, prompting the appellant to seek waiver of the limitation against the 2008 order.

8. The court, after considering submissions and the judgment in a relevant case, held that a right of appeal is a procedural matter that cannot retroactively create a substantive right to file an appeal that did not exist earlier, denying the appellant's request for condonation of delay.

9. The court rejected the appellant's argument that the right of appeal created subsequently should apply retrospectively, emphasizing that the statutory remedy of appeal cannot be extended retroactively, as it was not available in 2008 or when the order was served in 2009.

10. Ultimately, the court dismissed the appeal, finding no substantial question of law and rejecting the appellant's claim for condoning the delay based on the retrospective application of the right of appeal.