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TMI Blog2018 (5) TMI 1552X X X X Extracts X X X X X X X X Extracts X X X X ..... objection was raised by the respondent/assessee, represented by Mr. P.R. Mullick, Advocate, that the Appeal is filed beyond time. 2. Before proceeding to hear the parties on merits of the appeal at admission stage, we would deem it appropriate to hear the preliminary objection raised by respondent on delay. 3. We heard Mr. H.M. Bhatia, learned counsel on behalf of the appellant/Revenue and Mr. P.R. Mullick, learned counsel on behalf of the respondent/assessee. 4. The case of the appellant is that the appellant in this case, namely, the Director of Income Tax (International Taxation) Delhi-II, New Delhi, has filed the Appeal on 13.7.2011. As the copy of the impugned order was received in the office of the appellant only on 16.3.2011. An Appeal under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as the Act ) is to be filed within a period of 120 days from the date of receipt of a copy of the order. Therefore, learned counsel for the appellant would submit that the Appeal has been filed within time. In fact, he points out that even the Office has not raised any objection that the Appeal is barred by limitation and it is the respondent/assessee, which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it and there is no such entry of receipt recorded in the registers. In fact, the appellant points out the contradiction in the case set up by the respondent/assessee. At one place, it is mentioned that, under the Right to Information Act, information has been given by the Tribunal that the impugned order was dispatched on 09.9.2009; yet, at another place, it is contended that the said order was served on 09.9.2009. This is sought to be brushed aside as a mistake by the respondent/assessee. 8. The respondent/assessee would also contend that much water has flown under the bridge after the passing of the order in terms of various litigations and other developments, which have taken place. He enlists the filing of Writ Petition No. 2070 of 2009 by the respondent/assessee on 07.12.2009. It related to a challenge to proceedings under Section 147 of the Act in relation to Assessment Year 2002-03. This is after the impugned order was passed on 29.5.2009. He would submit that a counter affidavit was filed by the Director of Income Tax (the appellant in the present case) on 23.12.2009. Mr. P.R. Mullick would seek to impute knowledge of the impugned order by the contents of the counter af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 260A is a provision, which appears later in the Act and it is under Section 260A that the law contemplates that the Principal Chief Commissioner or the Chief Commissioner or the Principal Commissioner or the Commissioner, besides an assessee, may file appeal to the High Court within 120 days from the date on which the order appealed against is received by inter alia the Principal Chief Commissioner or the Chief Commissioner or the Principal Commissioner or the Commissioner. It may also be apposite that we refer to the definition of the word Commissioner . The word Commissioner is defined under Section 2(16) as follows: 2(16) Commissioner means a person appointed to be a Commissioner of Income-tax or a Director of Income-tax or a Principal Commissioner of Income-tax or a Principal Director of Income-tax under sub-section (1) of section 117; 13. Chief Commissioner is defined under Section 2(15A) as follows: 2(15A) Chief Commissioner means a person appointed to be a Chief Commissioner of Income-tax or a Principal Chief Commissioner of Income-tax under sub-section (1) of section 117; 14. Commissioner (Appeals) is separately defined under Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e; on the one hand, it is stated that it is dispatched on 09.9.2009, thereafter, it is stated that it was served on same date i.e. 09.9.2009 is practically impossible. In this context, it is relevant to notice that the respondent/assessee has not, apparently, made any efforts to ascertain whether the impugned order, which is alleged to have been dispatched on 09.9.2009, has actually been served, which could have been done by way of making queries with the post-office. Therefore, we would think that we may not be justified in rejecting the case of the appellant that the impugned order was not received, as claimed by the respondent/assessee. 18. As regards the knowledge of the order, which is attributed to the appellant by virtue of various proceedings, which we have made reference to, we would think it may be beside the point, as Section 254(3) contemplates a duty with the Tribunal to communicate the order. Section 260A creates a right of appeal and provides that appeal is to be preferred within a period of 120 days. The appeal is to be lodged within 120 days of the receipt of the order. Reading these provisions together, it is clear that what is contemplated by the law giver is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was brought about during the pendency of the appeal. Secondly, it is also not clear as to whether what is described as a Circular is one, which is issued under any statutory provision obliging the authority to follow it or making it mandatory. 21. We also do not find with merit the argument based on the decision of the larger Bench of the Delhi High Court. The issue, which has been raised in this case, must be dealt-with with reference to the facts obtaining in this case. Therefore, since we are inclined to take the view that the order dated 29.5.2009, namely, the impugned order of the Tribunal was received on 16.3.2011 by the appellant and the appeal is lodged within 120 days, the appeal cannot be treated as barred by limitation. 22. It is also relevant to bear in mind, in the context of the framework of the Act in question, that unlike other law, the law giver does not contemplate the aggrieved party making an application and obtaining the certified copy as a condition for preferring an appeal. The order is to be mandatorily communicated by the Tribunal to the persons entitled. Since there is a specific mode, which is provided under the Act, we would think that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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