9911796707
TMI Blog1985 (12) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal entered as WT Appeal No. 449 (Bom.) of 1984 was filed only on 29-2-1984 with a delay of one year and 19 days. The assessee presented an application for condonation of the delay and admission of the appeal on 6-12-1984. The application was accompanied by the assessee's own affidavit and the affidavit of Shri D. M. Sathe, chartered accountant. The assessee's affidavit gave the reason for the delay to his own ignorance of procedure in these matters and has having acted on the advice of the junior assistant of Shri Sathe. Shri Sathe's affidavit narrated the events leading to the delay which occurred in the filing of the appeal. Apparently, after the receipt of the order from the Commissioner (Appeals) the chartered accountant directed his assistant to file a revision petition before the Commissioner (Administration) instead of filing an appeal to the Tribunal. Coming to know, subsequently, that the proper thing was to file an appeal to the Tribunal he tried to do so and in this connection took the aid and advice of one Shri Navnithbhai Somaiya, a senior counsel. The explanation was that on account of certain difficulties of the said Shri Somaiya, the chartered acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he picture that would emerge would certainly give rise to a different decision on the issue by the Tribunal. 4. Elaborating his points the learned counsel has pointed out that he produced before the tribunal 16 items in support of his condonation allocation. Of these, the tribunal looked into three and returned the balance of 13. The assessee, thus, did not get an opportunity at all to present his case as far as these materials are concerned. These materials, which the assessee was prevented from producing, clearly want to show that the WTO's order stood legally vitiated. Several decisions of the High Courts and the Supreme Court indicate that where any order is contrary to the provisions of law or pointed out to illegality at the face of it, limitation provisions under specific enactments do not apply. 5. In the present case on working out the net wealth of the assessee for the assessment year under appeal, viz., 1969-70 the WTO included certain cash credits which were added as the income of the assessee for the subsequent assessee meant year, viz., 1970-71. The assessment order for 1970-71 was the subject-matter of appeal before the Tribunal. The Tribunal set aside the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case is to tax the alleged cash credits without deduction of the relevant income-tax payable, which would have been a charge on the same the moment it is treated as an income of the assessee and later on to be considered as his wealth. According to the learned counsel, therefore, the order of the WTO carried on its face these twin illegalities, one non-compliance with the positive binding directions of an appellate authority, viz., the tribunal and the illegal and unconstitutional inclusion of the property of the assessee and not the net wealth which alone is taxable under the Act. Relying on several decision, it is pointed out that this clear illegality on the face of the or rendered any limitation under the statues non-applicable to the case. The Tribunal by not permitting the assessee to refer to the assessment order, Tribunal's order, etc., relevant to the above issue, those being summarily returned to the assessee prevented him form producing materials relevant to the decision. Since these papers were actually handed over to the assessee and not even allowed to be put on record, it was a clear case of the Tribunal erroneously refusing to look into relevant material. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n error in saying that the assessee had two forums of relief. The mistake committed by the chartered accountant that there could be a revision from the Commissioner (Appeals) to the commissioner of Income-tax (Administration) had been also committed by the Tribunals themselves when they mention at paragraph 14 : "There can hardly bean dispute that the two remedies provided under the Act, viz., a revision petition to the Commissioner of Wealth-tax and an appeal to the Appellate Tribunal, are two entirely and distinct remedies and if an assessee chooses one remedy he cannot have recourse to the other. This would be clear from clause (a) of the proviso to section 25(1) of the Wealth-tax Act....." Apparently, the Tribunal also fell into an error on believing that there could be a revision petition from the Commissioner (Appeals) to the Commissioner (Administration). Yet, according to the learned counsel, the Tribunal would not accept the affidavit of the chartered accountant that there was a bona fide mistake on his part. It is prayed that the adverse remarks about the chartered accountant were certainly uncalled for and should expunged at any rate. It is also pointed out that even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal took in for consideration only the first three and retuned the balance of 13. In fact there is note on the file against these 13 items 'retuned to counsel as not relevant'. Apparently, this indicates that the Tribunal had not seen these materials. These 13 items include the order of the ITO for the assessment year 1970-71, order of the Tribunal for the assessment year 1970-71, the application and order of the settlement commission and the letters of the WTO and the chartered accountant. It is out of the order of the Tribunal and the Settlement Commission that the learned counsel has sought to point out that there has been a clear illegality resulting from non-compliance with the appellate authority's order and also non-adherence to the principles of natural justice pointed out by the appellate authority. Also arise from these orders the other points made out about the inclusion of an amount as net wealth for the year 1969-70 without support form the foundation order of 1970-71 where the original addition was made but which has been deleted. There was also the further inclusion of an entire asset as against the 'net asset' which is only includible for purposes of wealth-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly allowed. Per Shri Y. R. Meena. Judicial Member - I have gone through the order of my learned brother, but, unfortunately, I am not able to persuade myself to agree with the view taken by him. 2. The arguments put forth by the learned counsel for the assessee and the learned departmental representative are elaborately incorporated in the order of my learned brother. Therefore, there is no need to state the same again. The only thing to be seen is whether we can condone the delay of one year and 19 days which according to the Tribunal, was not for a reasonable cause as has been said in the order of the Tribunal in WT Appeal No. 449 (Bom.) of 1984. The main argument of Shri Juneja, the learned counsel for the assessee, was that cases cited by him are not properly considered. Therefore, the order of the Tribunal was erroneous. His second main submission was that the affidavits of the assessee and his chartered accountant which were before the Tribunal were not fairly considered and the same were rejected without examination of the parties. He also submitted that as the relevant order of the WTO was erroneous and illegal, therefore, the provisions of limitation are not applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the condonation of delay of one year and 19 days in filing the appeal in an order on miscellaneous application, will amount to review of the order in WT Appeal No. 449 (Bom.) of 1984 dated 21-1-1985 ?" 2. Briefly stated the relevant fats are : the assessee is an individual and the proceedings relate to his wealth-tax assessment for the assessment year 1969-70. The WTO, it may be stated, completed the wealth-tax assessment in the case of the assessee for the assessment years 1967-68 to 1974-75 on which 7-3-1979. The speaking order is passed for the assessment year 1967-68 which has been followed in all other assessment years. The assessee's appeals for the assessment years 1969-70 and 1970-71 have been disposed of by a consolidated order by the Commissioner (Appeals) by his order dated 22-11-1982 in terms of which he has reduced the inclusion of an amount of Rs. 10,29,500 representing cash credits in the wealth of the assessee by Rs. 5,05,022. The above order was served on the assessee on 12-12-1982. The assessee, it further appears, filed a revision petition before the Commissioner on 2-3-1983, which was rejected by the commissioner vide his order dated 13-12-1983. Served o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bench constituted of different Members on 23-9-1985 and 24-9-1985. 4. It is evident from the pint of difference as formulated by the learned Members that if they were hearing the appeal and not the miscellaneous applications, they would have condoned the delay of one year and 19 days. However, the learned Judicial Member has taken the view that the condonation of delay in these proceeding will amount to reviewing the appellate order and the tribunal does not have any such power. The precise point of difference, thus, is whether condoning the delay in these proceedings would amount to review of the appellate order dated 21-1-1985. 5. Parties hag been heard. Shri P. L. Juneja, the learned counsel for the assessee, has taken me through his written submissions made before the Bench from time to time. He has also cited a number of cases for the purpose of showing that a Judge should be courageous enough to acknowledge his errors and should pass a speaking order and that limitation does not apply in the case of appeal against void orders. He has also taken me through the appellate order dated 21-1-1985 to show that the order at least suffers from two patent and obvious mistakes o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the view that it will amount to review of the appellate order which the Tribunal cannot do. 6.1 In this context, it is desirable to mention that the Tribunal has reproduced the affidavit of the assessee and the affidavit of the assessee's chartered accountant, Shri Sathe, in paragraphs 3 and 4 of the appellate order. It has referred to the assessee's submissions in paragraphs 5, 6 and 8 of the appellate order. The submissions made on behalf of the revenue have nee incorporated in paragraph 7 of the order. The Tribunal's order is found in paragraphs 9 to 16 of the order. It is of significance that the Tribunal has in its appellate order observed that there were two entirely and distinct remedies available to the assessee after his appeal was disposed of by the Commissioner (Appeals) and that if the assessee chose one remedy, he could not have recourse to the other. This aspect of the matter has been dealt with by the Tribunal in paragraph 14 of its order, which reads as under : "14. In the light of the above-mentioned principles, when we examine the facts of the present case, we find that the assessee has taken shelter under the plea that he is totally ignorant of the intricac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o do so. On the contrary, the materials on record establish that it was only Shri D. M. Sathe who was preparing the appeal and arranging the filing of the appeal." Since, I am inclined to accept the submission made on behalf of the assessee that these two assumptions are not correct and are wrong on the face of it. I have to hold that the appellate order form at least the above two glaring and obvious mistakes of law. The reason for my agreeing with the counsel for the assessee is that the appellate order in the case of the assessee was passed by the Commissioner (Appeals) who is certainly not an authority subordinate to the Commissioner. In this view of the matter, the assessee did not admittedly have the two alternative remedies. His filing a revision petition to the Commissioner was, thus, definitely a mistake. Similarly, when the assessee and his chartered accountant, Shri Sathe, have filed affidavits making averments as to how the senior chartered accountant, Shri Navnithbhai Somaiya, was in the picture and as to how he declined conducting the assessee's case at the last moment, one cannot say that there is no material, however trivial the said material might be, one cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
