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TMI Blog2008 (3) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... second case") is against the order dated April 13, 2007, of the Tribunal passed in several connected appeals of the appellants. 5. The first submission of Sri Singh, learned counsel for the appellant in the first case is that the appeal filed before the Tribunal was barred by time. This objection was raised by him before the Tribunal also but the same has not been adverted to by it. Elaborating his submission, it is contended that the copy of the order dated October 3, 2006, of the Commissioner of Income-tax (Appeals) (in short "the CIT (A)") was received by the assessing authority before November 14, 2006, inasmuch on November 14, 2006, the Income-tax Officer, pursuant to the order dated October 3, 2006, issued revised demand and, therefore, the appeal filed on January 12, 2007, was barred by limitation as prescribed under section 253(3) of the Act. However, we do not find any substance in the submission. A perusal of the section 253(3) shows that the period of limitation commences from the date the order is communicated to the assessee or the Commissioner, as the case may be. Therefore, the period of limitation prescribed under sub-section (3) of section 253 of the Act would com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted in the Commissioner cannot be made non est merely on the ground that the order against which the appeal was filed was complied with by the subordinate authority. Even in the judicial orders, when an appeal is filed and no interim order is passed, if the order passed by the lower court is executed, it would not make the appeal incompetent or infructuous. The right of appeal is one thing and compliance with the order against which the appeal is filed is another thing. The Commissioner by no principle of law can be restrained or deprived of exercising his right of appeal under section 253(2) of the Act. The aforesaid contention of the appellant is thus rejected being without any substance. 7. Now, comes the last submission that merely because Sri R. K. Jain, the then Commissioner of Income-tax (Appeals) was transferred, it would not denude him the inherent jurisdiction to decide the pending appeals and, therefore, only on this ground, the order passed by the then Commissioner of Income-tax (Appeals) could not have been set aside by the Tribunal. It is contended that the doctrine of de facto would apply in such a case and reliance is placed on the apex court decision in Gokaraju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income-tax, Income-tax Appellate Tribunal, Allahabad, the representation of Shri Jain is therefore, rejected. He is also directed to hand over the charge of the Commissioner of Income-tax (Appeals), Allahabad, to his successor and join new place of posting immediately in compliance of order No. 68/06 dated May 31, 2006. 6. This is issued in compliance of the order of the hon'ble C.A.T. Allahabad Bench in O. Ac. No. 624/A/2006." 10. It is said that the order dated September 22, 2006, was served upon Sri R. K. Jain on September 25, 2006, through a letter dated September 25, 2006, of the Chief Commissioner of Income-tax, Allahabad. On the same date, it is said that Sri Aseem Kumar also assumed charge as Commissioner of Income-tax (Appeals), Allahabad. Sri Jain filed a contempt petition No. 154 of 2006 stating that the Department has disobeyed the order of the Tribunal whereupon on September 27, 2006, order of "status quo as on date" was passed by the CAT. The said contempt petition was disposed of by the CAT vide judgment dated November 20, 2006, wherein it recorded a clear finding that Sri R. K. Jain was aware of disposal of his representation by order dated September ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents pronounced and acts done by a judge de jure. Such is the de facto doctrine, borne of necessity and public policy to prevent needless confusion and endless mischief. The de facto doctrine saves such acts. There is yet another rule also based on public policy. The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise so soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge. A judge's title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a judge's appointment in an appeal against his judgment is, of course, such a collateral attack." 13. Earlier too, the de facto doctrine was applied by the Constitutional body vide 22nd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come-tax (Appeals), Allahabad. Instead he was obliged to assume his duty as Commissioner of Income-tax, Income-tax Appellate Tribunal, Allahabad, where he was transferred. This leads to the situation that on October 3, 2006, Sri R. K. Jain had no jurisdiction whatsoever to function as Commissioner of Income-tax (Appeals), Allahabad. In these circumstances, we fail to understand as to how the doctrine of de facto would have any application whatsoever in his case. The submission of learned counsel for the appellants lack substance. It is rejected accordingly. 17. No other argument has been advanced. 18. However, before parting, this court find it appropriate to record its displeasure to the manner in which such senior authorities of the Department have functioned despite the orders of transfer creating an atmosphere of doubt in the mind of the assessee and public at large that the bona fide is lacking in the entire transactions. The conduct of the authorities cannot be appreciated at all. The situation has arisen on account of the litigation caused due to the challenge to transfer order before the Central Administrative Tribunal. Since, right to challenge an order of transfer canno ..... X X X X Extracts X X X X X X X X Extracts X X X X
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