9911796707
TMI Blog2002 (11) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... r seeks to challenge the order, dated February 26, 1999 (annexure P-8), and reiterated by way of intimation by a subsequent order, dated December 7, 2001 (annexure P-26), passed by the Commissioner of Income-tax (intimated on his behalf by the Deputy Commissioner of Income-tax/Assistant Commissioner of Income-tax) to the petitioner. In order to appreciate the controversy involved in the writ, which lies in a narrow compass, a few relevant facts need mention. The petitioner is an assessee, as defined under section 2(7) of the Income-tax Act, 1961, so too a "person" as defined under section 87(k) of the Kar Vivad Samadhan Scheme, 1998, as introduced by the Finance (No. 2) Act, 1998. For the assessment year 1992-93, the petitioner filed its return on March 28, 1995. The Assessing Officer by order dated March 28, 1995, made an assessment and determined the tax liability as also imposed penalty payable by the petitioner for the year 1992-93. The petitioner was not satisfied with the additional tax liability as also the penalty imposed, and hence, filed an appeal under section 249 of the Income-tax Act to the Commissioner (Appeals). This appeal came to be dismissed by order dated Novem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is this application which was allowed by the Appellate Tribunal by order, dated February 11, 2000 (annexure P-11). As a consequence, the delay in filing the appeal was condoned. As stated supra, the petitioner having felt aggrieved by an order, dated December 7, 2001 (annexure P-26), by which its declaration was rejected has filed this writ. Notice of the petition was issued to the respondents. They were served and filed their return justifying the passing of the impugned order and the reasons contained in support thereof. Heard Shri G.M. Chafekar, learned senior counsel with Shri Sarda for the petitioner, and Shri A.P. Patankar, learned counsel for the respondents. Shri Chafekar, learned senior counsel, while assailing the legality and propriety of the impugned orders, dated February 26, 1999, and December 7, 2001, which resulted in rejection of the declaration filed by the petitioner under the Scheme in the first place contended that the reasoning that led to rejection of the petitioner's declaration by respondent No. 1 itself was factually and/or legally faulty. In the second place, learned counsel contended that it cannot be disputed as a fact that on the date (December 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrear under any direct tax enactment,-.... (c) to 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 filing of declaration or no application for revision is pending before the Commissioner on the date of filing declaration." A perusal of the aforequoted clause would show that the Scheme in question is not made applicable to a case where no appeal or reference, or writ petition is "admitted" and "pending" before the appellate authority or the High Court or the Supreme Court on the date of filing of the declaration or no application for revision is "pending" before the Commissioner on the date of filing the declaration. In other words, in order to take benefit of the Scheme, it is necessary for the assessee to show as a fact that on the date of filing the declaration under the Scheme an appeal, or reference, or writ was "admitted" for final hearing and was "pending" before any appellate authority, or the High Court, or the Supreme Court as the case may be. It is only then that the assessee becomes entitled to invoke the provisions of the Scheme and apply by submitting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er words, simply pending. The deliberate use of the word "admitted" prior to the words "and pending" can never be regarded as redundant or otiose. It being a settled rule of interpretation that every word in the statute has its definite meaning and has full application to this case. The submission of learned counsel for the petitioner would have had some force if the word "admitted" had not been used by the Legislature in section 95(i)(c) of the scheme and instead only the word "is pending" had been used. In that situation, what was required to be seen was, whether any appeal was filed prior to the submission of declaration and whether it was pending on the date of submission of declaration. Such is not the case here. Yet another submission of learned counsel for the petitioner that the Tribunal condoned the delay in filing the appeal though subsequent to filing a declaration on February 11, 2000, hence, it relates back to the date of filing of appeal, i.e., on December 26, 1998, so as to hold the appeal to be valid and pending on December 31, 1998, i.e., the date of filing declaration, has no merit for several reasons. Firstly, it is not in dispute that the appeal when filed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for this reason that it specifically used the words "admitted" and "pending" after these three types of cases in section 95(i)(c) ibid. However, in the same section while dealing with the case of revision, the Legislature has only used the word "is pending". In other words, not using the same phraseology, i.e., "admitted" and "pending" for revision and only using the word "pending" for revision is of great significance. This deliberate departure of the word "admitted" while dealing with the case of revision in the same section lends support to the interpretation that while it is not necessary for the assessee to show that his revision is "admitted" and "pending " on the date of submission of the declaration but by simply showing that revision is pending, the declaration can be entertained, it is not so in so far as it relates to appeals, writs and references else, the Legislature would not have carved out revision separately but would have kept it in the same category of appeal, writ and reference, or vice versa, i.e., placing the appeal along with revision, rather than with writs/references. In other words, nothing prevented the Legislature to include appeal along with revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73, was in relation to an interpretation of section 24(b) of the Industrial Disputes (Appellate Tribunal) Act, 1950. Though section 24(b) is not reproduced verbatim in the report the observations of their Lordships while interpreting section 24(b) do not indicate that its wording is in pari materia with section 95(i)(c) of the Scheme in question. In other words, section 24(b) of the Industrial Disputes (Appellate Tribunal) Act did not have the words "is admitted and pending" like in section 95(i)(c) but section 24(b) contained the words "during pendency of appeal". Secondly, the word "admitted" being conspicuously missing in section 24(b) makes the case totally distinguishable with the present case and cannot be cited as a proposition in support of the submission. Thirdly, in the present case, it is necessary for the Commissioner while examining the declaration filed under the Scheme to ensure and record his finding as to whether it is in accordance with the requirements of the scheme or not. Obviously, therefore, section 95(i)(c) being a part of the Scheme, it is equally obligatory on the part of the Commissioner to examine as to whether the assessee has fulfilled the requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion/reference. In such eventuality, the question of admission of the case does not arise and the lis results in its final termination at its threshold. However, if the appellate authority/ court is satisfied that the appeal/writ/reference involves an arguable point then the case is "admitted" for final hearing and notice is issued to the respondent. The reason being that no court/authority can set aside the order impugned without hearing the party in whose favour the order is passed. This process involves judicial application of mind by an appellate authority/court and hence assumes significance so far as emerging of any judicial order is concerned. As taken note of supra, it depends upon the facts of each case, whether it is a fit case for admission or not. Keeping these well settled principles and the procedure prescribed and evolved, this court cannot ignore the use of expression "admitted" in section 95(i)(c) and has to give due weightage to the said word while interpreting the said section. Coming to the facts of the case, it is not in dispute that the appeal filed by the petitioner on December 26, 1998, before the Tribunal was not an "admitted" appeal as on December 31, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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