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J.K. Synthetics Ltd. Vs. Appellate Assistant Commissioner of Income-tax, Special Range and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberCivil Miscellaneous Writ Petition No. 6512 of 1973
Judge
Reported in[1976]103ITR759(All)
ActsIncome Tax Act, 1961 - Sections 154 and 249(3)
AppellantJ.K. Synthetics Ltd.
RespondentAppellate Assistant Commissioner of Income-tax, Special Range and anr.
Appellant AdvocateS.C. Khare and ;V.B. Upadhya, Advs.
Respondent AdvocateR.R. Misra, Adv.
Excerpt:
- - section 249(3) of the act provides that the appellate assistant commissioner may admit an appeal after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting it within that period. commissioner of income-tax, [1952]22itr101(all) it was held that the tribunal has inherent jurisdiction to set aside an order of dismissal for default or an order passed on an appeal heard ex parte when it is satisfied that there was in fact no service of notice, or that there was sufficient cause which prevented the appellant or the respondent from appearing on the date fixed. in view of the divided success the parties shall bear their own costs......of appeal was not accompanied by the notice of demand and on this ground the office of the appellate assistant commissioner returned the memorandum of appeal to the petitioner. subsequently, the petitioner-company applied for a certified copy of the notice of demand. the same was given to it on 18th october, 1972. the companyfiled the memorandum of appeal again on 19th october, 1972, attaching with it the certified copy of the notice of demand. the appellate assistant commissioner on 11th may, 1973, passed an order condoning the delay and admitting the appeal. it appears that sri r. r. jha, the appellate assistant commissioner, who passed the order dated 11th may, 1973, was transferred and was succeeded by the appellate assistant commissioner, sri c. d. basu. sri c. d. basu on.....
Judgment:

Satish Chandra, J.

1. Aggrieved against an assessment order passed under Section 143 of the Income-tax Act for the assessment year 1968-69 on 27th March, 1972, the petitioner-company filed an appeal on 28th April, 1972. The memorandum of appeal was not accompanied by the notice of demand and on this ground the office of the Appellate Assistant Commissioner returned the memorandum of appeal to the petitioner. Subsequently, the petitioner-company applied for a certified copy of the notice of demand. The same was given to it on 18th October, 1972. The companyfiled the memorandum of appeal again on 19th October, 1972, attaching with it the certified copy of the notice of demand. The Appellate Assistant Commissioner on 11th May, 1973, passed an order condoning the delay and admitting the appeal. It appears that Sri R. R. Jha, the Appellate Assistant Commissioner, who passed the order dated 11th May, 1973, was transferred and was succeeded by the Appellate Assistant Commissioner, Sri C. D. Basu. Sri C. D. Basu on 24th July, 1973, passed an order (annexure 'II') indicating that he was unable to act upon the order of his predecessor dated llth May, 1973, condoning the delay, because the order was based on complete misunderstanding of the correct facts and to that extent it was apparently erroneous and was not liable to be acted upon. After hearing the assessee the Commissioner passed a detailed order on 8th August, 1973, purporting to be under Section 154 of the Income-tax Act, 1961. By this order he set aside the earlier order dated 11th May, 1973. Thereafter he took up the appeal for hearing and vide order dated 5th September, 1973, dismissed the appeal as barred by time. He held that the delay in filing the memorandum of appeal was inordinate and there was no sufficient cause to condone the delay.

2. The present petition challenges the two orders, namely, the rectification order and the order dismissing the appeal. It appears that after the institution of the writ petition the petitioner filed an appeal before the Tribunal against the order dated 5th September, 1973,

3. In relation to the order dated 8th August, 1973, purporting to be under Section 154 of the Income-tax Act the submission on behalf of the petitioner was that the Appellate Assistant Commissioner had no jurisdiction whatever to rectify the order dated llth May, 1973, whereby the delay had been condoned and the appeal had been admitted. Section 249(3) of the Act provides that the Appellate Assistant Commissioner may admit an appeal after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting it within that period. Section 250 authorises the Appellate Assistant Commissioner to fix a day and place for the hearing of the appeal and, after hearing the parties, to decide it. Section 154 confers special power upon the income-tax authorities of rectifying any mistake. It provides:

'154. (1) With a view to rectifying any mistake apparent from therecord--

(a) the Income-tax Officer may amend any order of assessment or of refund or any other order passed by him;

(b) the Appellate Assistant Commissioner may amend any order passed by him under Section 250 or Section 271;.....'

4. It is apparent that though the Income-tax Officer had power to amend any order passed by him, the Appellate Assistant Commissioner's power torectify mistakes is confined to the orders passed by him under Sections 250 and 271. The Income-tax Act provides for specific order under Section 249(3) for the condonation of delay. This order has not been subjected to the power of rectification under Section 154. The subject-matter covered by an order passed under Section 249(3) being wholly outside the purview of the statutory power of rectification conferred by Section 154, the Appellate Assistant Commissioner was incompetent to even look into, much less rectify any mistake which appeared to him to have taken place in an order passed under Section 249(3).

5. On behalf of the department it was urged that the statutory Tribunals have inherent power. In this connection reliance was placed upon Income-tax Officer v. M. K. Mohammed Kunhi, [1969] 71 ITR 815 . In this case it was held that the income-tax authorities have an inherent power to pass an interim order of stay. This case has nothing to do with a situation where the Act confers a power of rectification and confines it to certain kinds of orders only. In Shri Bhagwan Radha Kishen v. Commissioner of Income-tax, : [1952]22ITR101(All) it was held that the Tribunal has inherent jurisdiction to set aside an order of dismissal for default or an order passed on an appeal heard ex parte when it is satisfied that there was in fact no service of notice, or that there was sufficient cause which prevented the appellant or the respondent from appearing on the date fixed. This case is inapplicable on facts because no such situation has arisen here. The Income-tax Act authorises the disposal of an appeal by the Tribunal after hearing the parties. If for any reason the parties had not been heard, the statutory rule had been violated. The principle laid down in this case will not apply to a situation where the power of rectification is conferred by one statute and is expressly confined to certain types of orders only. Under the guise of inherent power the authorities concerned could not catch within the purview of the power of rectification, an order expressly kept out of it. The decision of this court in Shri Bhagwan Radha Kishen was followed by the Punjab High Court in Mangat Ram Kuthiala v. Commissioner of Income-tax : [1960]38ITR1(Mad) and for the reasons mentioned above this decision is equally distinguishable.

6. In our view the Appellate Assistant Commissioner had no jurisdiction to employ the power conferred by Section 154 in order to cancel or set aside an order passed under Section 249(3) of the Act.

7. In relation to the order passed on 5th September, 1973, dismissing the appeal the position is slightly different. This order has admittedly been subjected to an appeal before the Tribunal. That appeal is pending. In this order the Appellate Assistant Commissioner held that even though the original order under Section 249(3) may not have been rectifiable yet hehad jurisdiction to rehear and redecide the question of condonation of delay at the time of final hearing of the appeal. He was also of the opinion that the earlier order condoning the delay was passed without hearing the Income-tax Officer. He applied the principles enunciated by the Supreme Court in Mela Ram and Sons v. Commissioner of Income-tax : [1956]29ITR607(SC) where the Supreme Court has held that when there is a judgment or order against which the statute provides a right of appeal but none is preferred within the time prescribed, therefore, the respondent acquires a valuable right, of which he cannot be deprived by an order condoning delay and admitting the appeal behind his back. And when such an order is passed ex parte, he has a right to challenge its correctness at the hearing of the appeal. Before we can set aside the order dismissing the appeal, we have to consider the question whether the Income-tax Officer was heard when the order condoning the delay was passed and if he was not heard then whether he had a right to reagitate the matter of condonation of delay at the hearing of the appeal. These questions do not directly relate to the jurisdiction of the Appellate Assistant Commissioner in disposing of the appeal. He undoubtedly had jurisdiction to dispose of the appeal one way or the other. The question whether the Income-tax Officer was heard or otherwise is a question of fact upon which the parties are not agreed. In view of this special feature it would not, in our opinion, be appropriate to interfere with this order at this stage when the petitioner has already filed an appeal before the Tribunal and the same is pending. It cannot be gainsaid that in that appeal the petitioner is entitled to raise all questions and challenge the various findings recorded by the Appellate Assistant Commissioner.

8. In the result the petition succeeds and is allowed in part. The order dated 8th August, 1973, is quashed. In view of the divided success the parties shall bear their own costs.


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