9911796707
TMI Blog2004 (11) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... quashing the order dated February 15, 1999, passed by the Commissioner of Income-tax, Allahabad, respondent No. 1, filed as annexure 5 to the writ petition. The petitioner further seeks a writ, order or direction directing respondent No. 1 to entertain the application under the Kar Vivad Samadhan Scheme, 1998, filed on December 22, 1998, for the assessment year 1993-94 and issue necessary order under the aforesaid scheme and other consequential reliefs. Briefly stated, the facts giving rise to the present petition are as follows: The petitioner is a registered partnership firm and is engaged in the business of edible oil, etc. For the assessment year 1993-94, an assessment was framed by the Deputy Commissioner of Income-tax, Special Range, Allahabad, vide order dated March 27, 1995. Feeling aggrieved by the said order, the petitioner had preferred an appeal before the Commissioner of Income-tax (Appeals), Allahabad, who vide order dated October 24, 1995, had rejected the appeal and had confirmed the assessment order. Still feeling aggrieved, the petitioner preferred a second appeal before the Income-tax Appellate Tribunal, which was filed on January 31, 1996. It is stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner of Income-tax that no appeal was pending on the date of filing of the declaration is erroneous and contrary to law. In support of his aforesaid submissions, he has relied upon the following decisions: (i) Mela Ram and Sons v. CIT [1956] 29 ITR 607 (SC); (ii) S.B. Jain, ITO v. Mahendra [1972] 83 ITR 104 (SC); (iii) Sheth Enterprises (P.) Ltd. v. Commr. of Customs [1999] 154 CTR 195 (Guj); and (iv) Shatrushailya Digvijaysingh Jadeja v. CIT [2003] 259 ITR 149 (Guj). Sri Ashok Kumar, learned standing counsel, on the other hand, submitted that under section 95(i)(c) of the Act it has been specifically provided that the provisions of the scheme shall not be applicable where no appeal is admitted and pending before the appellate authority. According to him, as the appeal was filed beyond time, the limitation having expired, till such time the application for condonation of delay is allowed, the appeal cannot be treated as pending before the Tribunal. Further, the requirement is that it should have been admitted also. The word "admitted" postulates that the appeal before the Appellate Tribunal should have been filed within time and in accordance with law and, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who has been convicted for concealment on or before the date of filing the declaration; (b) in a case where an order has been passed by the Settlement Commission under sub-section (4) of section 245D of the Income-tax Act or sub-section (4) of section 22D of the Wealth-tax Act, as the case may be, for any assessment year to any tax arrear in respect of such assessment year under such direct tax enactment; (c) in a case where no appeal or reference or writ petition is admitted and pending before any appellate authority or the High Court or the Supreme Court on the date of firing of declaration or no application for revision is pending before the Commissioner on the date of filing declaration;" From a perusal of the aforesaid provision, it would be seen that the scheme would not apply in a case where no appeal is admitted and pending before any appellate authority. The question is as to whether the appeal filed by the petitioner on January 31, 1996, along with the application under section 5 of the Limitation Act for condonation of delay before the Tribunal can be said to be "admitted and pending" before the Tribunal or not. In the case of Smt. Sushila Rani v. CIT [2002] 253 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that not all direct taxes under section 87(m) are entitled to the benefit of the scheme. If any appeal, etc., is not pending in respect of the tax arrears, the benefit of the scheme is not available under section 95(i)(c). If an appeal, etc., is pending, it is not for the designated authority to question the possible outcome of the appeal nor for the High Court to hold that the appeal was "sham", "ineffective" or "infructuous". In the case of Union of India v. Baroda Pharmaceuticals Ltd. [2003] 11 SCC 688, the apex court has held that if a benefit is sought under the scheme like Kar Vivad Samadhan Scheme the party must fully comply with the provisions of the scheme. If all the requirements of the scheme are not made, then on principle of equity the court cannot extend the benefit of that scheme. In the case of Hemalatha Gargya [2003] 259 ITR 1, the hon'ble Supreme Court has held that the Voluntary Disclosure Scheme, 1997, has conferred a benefit on those who had not disclosed their income by affording them protection against the possible legal consequences of such non-disclosure under the provisions of the Income-tax Act where the assessee seeks to claim the benefit under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f separately under section 30(2), the Legislature has evinced an intention to maintain the distinction well-recognised under the general law between what is a substantive right and what is a matter of procedural law. In Nagendranath Dey v. Suresh Chandra Dey [1932] LR 59 IA 283; Sir Dinshaw Mulla construing the word 'appeal' in the third column of article 182 of the Limitation Act observed: 'There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate court, asking it to set aside or revise a decision of a subordinate court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent.' These observations were referred to with the approval and adopted by this court in Raja Kulkarni v. State of Bombay [1954] SCR 384. In Promotho Nath Roy v. W. A. Lee, AIR 1921 Cal 415, an order dismissing an application as barred by limitation after rejecting an application under section 5 of the Limitation Act to excuse the delay in presentation was held to be one 'passed on appeal' within the meaning of section 109 of the Civil Procedure Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i)(c) the expression "admitted and pending" for revision and only "pending" for appeal. In the case of Ram Sewak Hari Om [1974] 33 STC 453 this court has held that once the appellate authority accepted the appeal as proper by specific order and admitted them, they do not become not maintainable as a result of the subsequent change of law. In the case of Deoneria Cold Storage and Ice Factory [2003] 260 ITR 315 this court has held that the declaration under the scheme ought to be made to the designated authority on or before December 31, 1998, which date had been extended to January 31, 1999, and it is for the declarant to ensure that the declaration reached the designated authority by January 31, 1999, i.e., by the date fixed. In the case of Maruti Udyog Ltd. [2001] 124 STC 285, the apex court was considering the question as to what was the meaning of the word "entertained". It has held that the word "entertained" means "admit to consideration". In the case of Gopal Films v. Deputy CIT [1999] 237 ITR 655, the Karnataka High Court has held that where a revision petition is filed beyond time unless the delay is condoned, it cannot be said that the revision is pending. In such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 264 of the Income-tax Act has been rejected, the revision was to be treated as non est and when it was non est, there would not be any question of pendency of the revision application on January 29, 1999, when the declaration was filed by the assessee. In the case of Lukkose John Thoppil v. CIT [2000] 242 ITR 1, the Kerala High Court has held that where the revision petitions were filed on October 28, 1998, and the declarations were filed on November 2, 1998, it could not be said that the revision petitions were not pending on the date of filing of the revision petitions. The declarations were valid and had to be considered and it cannot be read that the revision which is required to be pending under section 95(i)(c) of the Act, should be maintainable or in which the relief could be granted, will be amounting to re-writing the section. In the case of Radhika Prakashan P. Ltd. v. Union of India [2002] 256 ITR 265, the Madhya Pradesh High Court has held that before the appeal filed by the declarant before the Tribunal was dismissed in default for appearance on September 4, 1998, and was restored later on June 1, 1999, and subsequently dismissed on the merits on May 10, 2000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be that the appeal would be treated to have been filed within limitation. Applying the aforesaid principles to the facts of the present case we find that under rule 4A of the Appellate Tribunal Rules, 1963 (hereinafter referred to as "the Rules"), the powers and functions of the Registrar have been defined. Under clauses (iii), (iv) and (v) thereof, the Registrar has been conferred with the power and duty to scrutinise all appeals and applications to find out whether they are in conformity with the rules, to point out defect in such appeal and application to the party requiring them to rectify the defects and if the same had not been rectified, to obtain orders from the Bench for the return of the appeal and the applications, to check whether the appeals are barred by limitation and, if so, intimate the party and place the matter before the Bench for orders. Under clause (vi), the Registrar has been empowered to fix a date of hearing of the appeal and even direct the issue of notice therefor subject to the direction of the President, Senior Vice-President, Vice-President and Senior Member of the Bench. Under rule 12 of the Rules, the Tribunal has been empowered to reject a memor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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