9911796707
TMI Blog2007 (11) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... assessments set aside by the CIT(A) - AO wrongly made fresh assessments u/s 144 r/w section 251 - CIT(A) partly allowed the appeals of the assessee - HELD THAT:- We are of the opinion that the CIT(A) has set aside the assessment means that he annulled the assessment, since he has not given any direction to re-do the assessment. This view of ours is supported by the judgment of the hon'ble Calcutta High Court in the case of Fu Sheen Tannery v. ITO[ 2003 (4) TMI 88 - CALCUTTA HIGH COURT] . As such, the Assessing Officer has no jurisdiction to pass any further order. He is duty bound to follow the direction of the CIT(A) and he cannot sit over the order of the CIT (A), who is a superior authority. The remedy lies with the Department and he has to filed an appeal against the order of the CIT (A) if they have any grievance. In the present case, instead of filing the appeal in time against the CIT (A), the AO made a fresh assessment without jurisdiction which is against the law on the facts of the case and not sustainable in the eyes of law. Therefore, the additional ground raised by the assessee is allowed and we cancel the impugned assessment order as well as the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the jurisdiction on the Assessing Officer to make a fresh assessment after giving reasonable opportunity to the assessee. In view of the recent judicial pronouncement to the effect that setting aside of assessments by the Commissioner of Income-tax (Appeals) without giving any direction for fresh assessment amounts to annulment of assessment, it is felt necessary to contest the impugned order of the Commissioner of Income-tax (Appeals). 4. It is submitted that the Department has raised substantial question of law and the issues raised are of vital importance. If the delay in filing the appeal is not condoned a meritorious case would be lost, causing substantial loss to the Revenue. No prejudice will be caused to the respondent herein by condoning the delay and the matter could be agitated on merits. Furthermore as per the judgment reported in Collector, Land Acquisition v. Mst. Katiji [1987] 167 ITR 471; AIR 1987 SC 1353 the hon'ble Supreme Court had held that the court should adopt a liberal approach in condoning the delay on the reasons, inter alia, that ordinarily a litigant does not stand to benefit by lodging an appeal late. 5. It is, therefore, prayed that thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. In this regard, it is respectfully submitted that my predecessor Shri M. Rajasekar, Deputy Commissioner of Income-tax, Central Circle-II (2), Chennai, had filed a petition before the hon'ble Income-tax Appellate Tribunal on January 31, 2008. However, in the said petition condonation was sought only for a period of 7 years. The actual period of delay was 7 years and 18 days. 6. It is, therefore, prayed that this hon'ble Tribunal may be pleased to condone the delay of 7 years in filing this appeal and thus render justice. The learned Departmental representative has drawn our attention to the affidavits filed by the Department and supported the contention raised by the Department in the affidavits by placing reliance on the order of the Tribunal in I.T.A. Nos. 389 and 416, 379 to 388/Mds/2005 and others (Khemka Group). In I.T.A. Nos. 390 to 396 and 418/Mds/2005 in the case of Smt. Anitha Devi and in I.T.A. Nos. 352 to 360 and 413 and 415/Mds/ 2005 in the case of Smt. Sadhana Devi. He also filed a copy of the aforesaid orders of the Tribunal and pointed out that huge delay has been condoned by this Tribunal in these cases. Finally he requested the Bench that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the hon'ble Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361 to support his contention. Finally it was submitted that the decision of not filing the appeals has been taken by the Commissioner of Income-tax (Central), who is almost the highest authority in the income-tax hierarchy in the State. Further he contended that the decisions of the Tribunal relied on by the Department is not helpful to the Department since the facts of those cases are distinguishable from the facts of the present cases. Therefore he requested the Bench that the delay should not be condoned and the appeals may be dismissed as barred by limitation. We have heard both the parties and perused the records available with us. We have also gone through the affidavits filed by the Department. It is pertinent to note that both the aforesaid affidavits have filed by higher authorities of the Department and in the first affidavit dated January 31, 2006, they requested the condonation of delay of 7 years and in the second affidavit dated August 3, 2007, they requested for the delay of 7 years and 18 days. Actually, the delay to be filed in days and not in years and this is not expec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 798 (SC), the delay of 7 days was considered. In this case, the hon'ble apex court clearly laid down that a distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. The law assists those who are vigilant and not those who sleep upon their rights. This principle is embodied in the dictum: vigilantibus, et non dormientibus, jura sub venlunt. The delay cannot be condoned if the appellants' case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In granting the indulgence condoning the delay, it must be proved beyond the shadow of doubt that the Revenue was diligent and was not guilty of negligence whatsoever. The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. In the case of Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361, the hon'ble apex court has held that the cause for the delay in filing the appeal, which by due care and attention, could have been avoided, cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment orders, the assessee went in appeal before the Commissioner of Income-tax (Appeals) who partly allowed the appeals of the assessee. Aggrieved, the assessee as well as the Revenue have filed these appeals before the Tribunal. The assessee has raised various grounds of appeal on merits and also filed additional ground of appeal. The additional ground filed by the assessee is reproduced as under: The order of the Assessing Officer passed under section 144 read with section 251 of the Income-tax Act, 1961, is without jurisdiction, against the law and without specific direction by the Commissioner of Income-tax (Appeals). Therefore, the same is void ab initio, null and void, illegal and deserves to be cancelled. Learned counsel for the assessee stated that the additional ground raised by the assessee is very much essential for the decision of this case. He stated that the additional ground is a legal ground and it can be raised at any time. Further he stated that the assessee has raised a question of law from the facts and circumstances of the case and he requested that the same may be admitted. He further stated that keeping in view the judgment of the hon'ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 673 (AP); (5) ITO v. Kalyan Kumar Roy Trust [2001] 252 ITR (AT) 56 (Cal); (6) CIT v. Mrs. Ratanabai N.K. Dubhash [1998] 230 ITR 495 (Bom); (7) CIT v. Rajesh Talkies [1996] 220 ITR 107 (P H); and (8) Fu Sheen Tannery v. ITO [2003] 262 ITR 456 (Cal). On the contrary, Shri Sudhakar Tiwari, the Commissioner of Income-tax-Departmental representative controverted the argument advanced by learned counsel for the assessee. He argued that the facts in the case laws cited by learned counsel for the assessee are not identical to the facts of the present case and totally distinguishable. He stated that meaning of the word set aside is a clear-cut direction to the Assessing Officer to re-do the assessment after giving an opportunity to the party and decide the issue in dispute fresh under the law. The Assessing Officer completed the assessment in dispute under section 144 read with section 251 of the Act in compliance with the order passed by the Commissioner of Income-tax (Appeals) dated September 15, 1998. Therefore, he contended that the Assessing Officer was justified in making assessment under section 144 read with section 251 of the Act. We have heard both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Supreme Court has held as under: allowing the appeal, (i) that an appeal under article 136 of the Constitution of India lay to the Supreme Court against the order of the Settlement Commission; (ii) that the earlier order passed by the Settlement Commission on August 24, 1977, was a nullity because it was made in violation of the principles of natural justice; (iii) that, therefore, the application for settlement was still pending when the amendment made by the Finance Act, 1979, came into effect; and that amendment being procedural, the amended section 2450 would govern the proceedings and the Commission would have the power to overrule the objections of the Commissioner; (iv) that the appellant was entitled to be heard on the Commissioner's objections; (v) that on the facts though the appellant had made its submissions on the Commissioner's objections, no clear opportunity had been afforded to it to demonstrate that the Commissioner was not justified in making the objections and that the Commission ought not to accept the objections. It might be that in spite of the fact that concealment for the years 1948-49 to 1959-60 had been upheld in appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is a lack of pecuniary jurisdiction or territorial jurisdiction or jurisdiction over the subject-matter of the proceeding. In such a case after the assessment is annulled, there is no scope for passing a fresh assessment. However, if the assessment is set aside it is generally done only if there is a procedural irregularity which can be cured or if the assessment is made without proper enquiry etc. In such cases the assessment will have to be set aside but since there is no lack of jurisdiction, the appellate authority would be bound in law to direct the assessing authority to make a fresh assessment after curing the irregularity. There are any number of authorities laying down the principles as to when an assessment is to be annulled and when it is to be only set aside for being redone afresh. But that is not the point that arises in the present appeals and therefore, there is no need to refer to them. The position made clear by section 251(1)(a) is that it would be the duty of the appellate authority to give clear directions for making a fresh assessment in case he decides to set aside the assessment. It follows therefrom that if there are no such directions, the Income-tax Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s), who is a superior authority. The remedy lies with the Department and he has to filed an appeal against the order of the Commissioner of Income-tax (Appeals) if they have any grievance. In the present case, instead of filing the appeal in time against the Commissioner of Income-tax (Appeals) order dated September 15, 1998, the Assessing Officer made a fresh assessment without jurisdiction which is against the law on the facts of the case and not sustainable in the eyes of law. Therefore, the additional ground raised by the assessee is allowed and we cancel the impugned assessment order as well as the impugned order of the Commissioner of Income-tax (Appeals) in view of the precedents discussed above. Since we have allowed the legal issue raised by the assessee and cancelled the assessments, we refrain from going through the merits of the case and it is only academic. Accordingly, we allow the appeals of the assessee in I.T.A. Nos. 1148, 1149 and 1150/Mds/2002. In view of the above, the appeals of the Revenue in I.T.A. Nos. 1221, 1222 and 1223/Mds/02 become infructuous and we dismiss the same as infructuous. In the result, the Revenue's appeals in I.T.A. Nos. 1221, 1222, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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