9911796707
TMI Blog2009 (12) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... n he has solemnly affirmed as under : "I, Nitin Shripad Pujari, son of Shripad M. Pujari, at present residing at 8-B, Samir Society, Near Trilok Nagar, Ayurvedic Hospital Road, Ranigate, Baroda, aged 35 years, solemnly affirm and state as follows : I have been working in the staff of late Shrimant F.P. Gaekwad for the last ten years. I have been working as a go-between the Maharaja's family and the chartered accountant in the income-tax matters. Smt. Manjushree Gupta, chartered accountant of M/s. JRS Patel and Co., chartered accountant, Vadodara had handed over to me the orders of the Commissioner of Income-tax (Appeals) dated September 16, 2004, somewhere in the beginning of the second week of October, 2004 in the matter of late Shrimant F.P. Gaekwad for the assessment years 1972-73 to 1979-80 and 1985-86 against section 16(3) order of the Assessing Officer under the Wealth-tax Act along with the prepared grounds of appeal and the memorandum of appeal to be signed and to be filed directly by me in the office of the Tribunal. I had put these papers in my bag. I took these papers with me from the office of M/s. JRS Patel but totally forgot about them, and therefore, the appeals co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed as the relevant papers had remained with him only. He could understand that he had committed the grave mistake. He explained all the relevant facts to me and under my instructions he requested our tax consultants to prepare all the relevant papers afresh and also help in preparing the affidavit explaining the delay. Accordingly the appeal was filed with Nitin Pujari's affidavit explaining the delay. Ultimately, there are lot of civil litigations pending and on going in the case of estate of late Maharaja F.P. Gaekwad and late Rajmata Shantadevi Gaekwad and due to my old age and mistake of Nitin Pujari, unfortunately appeals could not be filed in time. I am extremely sorry for the delay in filing the appeals and humble request that the delay be kindly condoned." 3. In view of the affidavits and the reasons stated therein learned counsel for the assessee stated that the appeal papers for these eight appeals were prepared and were handed over to Nitin Pujari well in advance, i.e., in the beginning of the second week of October, 2004 for signature and filing of the appeals to the Tribunal but the same had not been handed over in view of the reasons stated in the above affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with the exercise of jurisdiction by trial court in condoning the delay when appellant's conduct did not as a whole warrant castigating him as an irresponsible litigant having regard to present busy and preoccupied life." 6. The hon'ble apex court further held that in the absence of anything showing male fide or deliberate delay as a dilatory tactic, court should normally condone the delay. The findings of the hon'ble court an that the primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situation is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublice u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be raised before the Tribunal for the first time. 11. We find that this issue of admissibility of a jurisdictional issue for the first time even though the same was not raised at the stage of remand by the Tribunal, the assessee can raise this issue, as held by the hon'ble jurisdictional High Court in the case of P.V. Doshi v. CIT [1978] 113 ITR 22 (Guj.), wherein it is held as under (from headnote) : "Held, that as a jurisdictional provision which was mandatory and enacted in public interest could never be waived and the want of jurisdiction was discovered by the Appellate Assistant Commissioner, there was no question of waiver by the assessee. No question of finality of the remand order of the Tribunal could arise because the mandatory conditions for founding jurisdiction for initiating reassessment proceedings had not been fulfilled. The order of reassessment was, therefore, not valid." 12. We find that before the hon'ble jurisdictional High Court, the following questions were referred, which read as under (page 24) : "1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that once the Tribunal passed an order the matter became fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If an original order is without jurisdiction it would be a nullity confirmed in further appeals. The appellate order of the Tribunal thereon would also be a nullity and the Tribunal cannot confer any jurisdiction on the Income-tax Officer by making a remand order. An order of reassessment was passed on the assessee. In an appeal against the order before the Appellate Assistant Commissioner, the assessee gave up the contention regarding the validity of the notice of reassessment. On the merits, the Appellate Assistant Commissioner dismissed the appeal. On further appeal the Tribunal remanded the case to the Income-tax Officer with direction to cross-examine a witness. On appeal from the order passed on remand the assessee contended that the reassessment proceedings were not validly initiated. The Appellate Assistant Commissioner examined the original order sheet and found that no reasons had been recorded by the Income-tax Officer as required by section 148(2). He further found that the Income-tax Officer had not specified the clause of section 147 under which the assessment had been reopened. He, therefore, annulled the order of reassessment. The Tribunal, however, held that once t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyond the period of four years from the end of the respective years only regarding one item, i.e., gold ornaments. The Assessing Officer in the reassessment order for the assessment years 1972-73 to 1974-75 included in the net wealth the land admeasuring 426 acres which were considered as exempt in original assessment under section 16(3) of the Act and taxed in the reassessment. As far as the assessment years 1975-76 to 1979-80 this 426 acres of land was not included in the reassessment but when the appeal pertaining to assessment years 1972-73 to 1974-75 went to the Commissioner of Wealth-tax (Appeals) against the reassessment orders, the Commissioner of Wealth-tax (Appeals) gave enhancement notice for 426 acres of land and the same was not held to be exempt. For the assessment years 1972-73 to 1974-75 the Revenue preferred appeal before the Tribunal and for the assessment years 1975-76 to 1979-80 the assessee preferred appeal before the Tribunal against inclusion of this 426 acres of land. The Tribunal disposed of the matter for the assessment years 1975-76 to 1979-80 by giving following findings : "We, therefore, set aside the order of the Commissioner of Wealth-tax (Appeals) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not only the main building but the entire area composing the palace complex is exempt under section 5(1)(iii) provided the entire area was in actual occupation of the former Ruler at the time of the Notification and continues to be in the occupation of the successor at the relevant time and has not been put to any other use. He stated that the whole plot of land is necessary for reasonable enjoyment of the palace and the same has been used in the same way and manner as prior to the merger of Baroda State in the Union of India in 1949 and therefore learned counsel for the assessee stated that facts of the present case are different and distinguishable from the facts of the case law referred by the lower authorities, i.e., H.H. Maharao Bhim Singhji v. WTO [1984] 10 ITD 558 (Jp.)(TM). When enquired by the Bench, learned counsel for the assessee categorically stated that lands are within the same expound and the same are situated within the immediate vicinity of the place and drawn our attention to the Central Board of Direct Taxes Circular which reads as under : "Circular by the Central Board of Direct Taxes being Letter F.No. 328/93-85 being Instruction No. 1640, dated July 23, 1985 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the discussion of the Commissioner of Wealth-tax (Appeals) in the appeal for the assessment year 1967-68 was there for this land is also not evident. We, therefore, set aside the order of the Commissioner of Wealth-tax (Appeals) and remit the matter back to the file of the Assessing Officer to consider the claim of the assessee in the light of the appellate order for the assessment year 1967-68 and if he finds that the land of 202 acres and 426 acres has the same bearing and effect in considering exemption "Under section 5(1)(iii), he should allow the claim of the assessee. In fresh proceedings, he should also keep in mind the majority decision in the case of Bhim Singhji (supra) we hold accordingly." The learned Commissioner of Income-tax-Departmental representative further stated that while deciding the appeal for the assessment years 1972-73 to 1974-75, the Income-tax Appellate Tribunal had followed the same decision in their subsequent order dated 31-12-2003. He further stated that as per the directions of the Income-tax Appellate Tribunal the Assessing Officer had to decide whether land of 202 acres in 426 acres bears the same characteristics and the reasonableness of land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer has correctly held the reasonableness of the land appurtenant to the Laxmi Vilas palace in the absence of any documentary proof and rest of the land has been brought to tax. 20. We have heard the rival contentions and gone through the facts and circumstances of the case. We find that the undisputed fact is that the assessee claimed 707 acres of land to be exempt under section 5(1)(iii) of the Wealth-tax Act in all these eight assessment years. During the course of original assessment proceedings the assessee has filed complete details and made complete disclosure, fully and truly of all the material facts necessary for assessment and the reopening was made beyond the period of four years. The Assessing Officer in the original assessments for the assessment years 1972-73 to 1979-80 has allowed exemption under section 5(1)(iii) of the Act of all 707 acres of land adjoining to the palace while framing original assessment including the disputed land of 426 acres under reassessment. Even during reassessment proceedings in the assessment years 1975-76 to 1979-80 the Assessing Officer did not include this 426 acres of land while completing reassessment but the Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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