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Md. Sayeed, Son of Abdul Rauf Versus Deputy Commissioner of Income Tax

2016 (4) TMI 401 - PATNA HIGH COURT

Jurisdiction of tribunal - Held that:- Tribunal was not correct in entertaining the appeal without considering the issue of limitation and without condoning the alleged delay. That being the position since there was an application for condonation of delay, which has not been considered by the Tribunal and the final order has been passed allowing the appeal of the Revenue and the order of the Tribunal being couched in a manner that the appeal of the assessee cannot be separated from the appeal of .....

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IT Mr. Alok Kumar Ms. Shalini Bihari JUDGMENT ( Per: Honourable Mr. Justice Ramesh Kumar Datta ) Heard learned counsel for the appellant in both the appeals and learned counsel for the respondent-Revenue. The appeals were admitted and as many as six substantial questions of law were framed at the time of admission in the decision of this Court. The third substantial question is in the following terms: "Whether the learned Tribunal was correct in law in entertaining the appeal without consid .....

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l being ITA No. 128/P/A-II/98-99 before the Commissioner of Income Tax (Appeal)-II, Patna which was allowed in part by order dated 8.2.2001. The assessee being aggrieved by the fact that the CIT (Appeal) having accepted the contention of the assessee on three aspects yet wrongly remitted the matter to the assessing authority on two of them and accordingly filed an appeal before the Income Tax Appellate Tribunal. The revenue also appealed against the order dated 8.2.2001 of the CIT (Appeal) chall .....

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spute that an application for condonation of delay was also filed on behalf of the Department. From the copy of the notice issued to the assessee in the Revenue s appeal, it is evident that the factum of delay was mentioned in the said notice. However, the admitted position is that no specific order condoning the delay in filing the appeal by the Revenue was passed. In the aforesaid conspectus of facts, learned counsel for the appellant submits that since the appeal of the Revenue was beyond the .....

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14 SCC 445 relying upon paras 32 and 33 thereof which are in the following terms:- "32. Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation, a court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits. 33. Sub-section (1) of Section 3 of the Limitation Act, 1963 reads as under: "3. Bar of limitation.-(1) Subject to the provisions contained in S .....

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he defendant, respondent or opponent, the court or authority must dismiss such suit, appeal or application, if it is satisfied that the suit, appeal or application is barred by limitation. Learned counsel also relies upon a decision of the Supreme Court in the case of State of West Bengal & ors. Vs. Somdeb Bandyopadhyay & Ors.: AIR 2009 SC 1989, the relevant part of para-6 of which is quoted below:- "6. It is to be noticed that even without condoning the delay and entertaining the w .....

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d to the same also having been served upon the assessee, it would be deemed that the limitation has been condoned once the final order has been passed. It is further submitted by learned counsel for the Income Tax Department that the fault equally lay with the assessee because in view of the notice dated 2.11.2001 issued to them they were very well aware of the pendency of the limitation petition. In support of her stand learned counsel for the Revenue relies upon a decision of the Supreme Court .....

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vision was barred by limitation and/or by delay or laches. The High Court noticed that the application filed by the 1st respondent on 9-3-1995 to examine Pritika Prabudesai was still pending and no order had been passed thereon. Thus it is clear that attention of the High Court was not drawn to the fact that subsequently on 5-9-1997 the respondent had moved another application to examine Pritika Prabudesai and that that application stood rejected on 6-11-1997. As the High Court was not aware of .....

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d that there was no such provision of law, which enabled the court to hold a fresh trial against the accused. It is, therefore, not possible to grant the said prayer made by the petitioner in this petition. However, having regard to the abovementioned facts and to secure ends of justice I think that it would be proper to direct the learned Magistrate to pass an appropriate order on the application dated 9-3-1995 filed by the petitioner praying for issue of summons to Pritika S. Prabudesai. The l .....

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an application being Criminal Application No. 3643 of 2000 for recalling the order dated 19-10-2000. That application stood disposed of by an order dated 13-12-2000/22-12-2000 (which is also one of the impugned orders). In this order it has been observed that during the hearing of the revision application no objection had been raised as to maintainability on the ground of limitation. The Court holds that Section 362 of the Criminal Procedure Code did not permit the Court to alter or review its e .....

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ndoned, the Tribunal had no jurisdiction, power or authority to entertain the appeal and pass any effective order on the same as no appeal could be deemed to be pending before the Tribunal until the delay in filing the same had been condoned. This is clearly the view of the Supreme Court in Noharlal Verma s case (supra). So far as the matter being within the knowledge of the assessee also is concerned, the same has no relevance as the limitation application having been filed by the Revenue in it .....

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