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2017 Supreme(Del) 993
IN THE HIGH COURT OF DELHI AT NEW DELHI
S. RAVINDRA BHAT, S. MURALIDHAR & VIBHU BAKHRU, JJ.
CIT-7 – Appellant
Versus
ODEON BUILDERS PVT. LTD. – Respondent
ITA 52, 755, 756 of 2015, CM APPL 23522 of 2015
Decided On : 24-03-2017
For the Revenue : Mr. Dileep Shivpuri, Senior Standing counsel with Mr. Sanjay Kumar, Junior Standing counsel, Ms. Vibhooti Malhotra, Lakshmi Gurung, Junior Standing counsel
For the Respondent:Mr. Abhishek Maratha, Advocate, Mr. C.S. Aggarwal, Senior Advocate with Mr. Prakash Kumar and Mr. Rupinder Kumar Aggarwal, Advocates
The limitation period for filing an appeal against an order of the ITAT under Section 260A(2)(a) of the Act commences from the date of receipt of the order by any of the officers named in the provision, including the CIT (Judicial).
Headnote:
INCOME TAX ACT, 1961 - SECTION 260A(2)(A) - INTERPRETATION - LIMITATION FOR FILING APPEALS - COMMENCEMENT - RECEIPT OF ORDER BY CIT (JUDICIAL) - EFFECT - HELD, RECEIPT OF ORDER BY CIT (JUDICIAL) IS SUFFICIENT TO TRIGGER LIMITATION.
Fact of the Case:
In the instant case, the question arose as to whether the limitation period for filing an appeal against an order of the Income Tax Appellate Tribunal (ITAT) under Section 260A(2)(a) of the Income Tax Act, 1961, commences from the date of receipt of the order by the 'concerned' Commissioner of Income Tax (CIT) or from the date of receipt by any CIT, including the CIT (Judicial).
Finding of the Court:
The Court held that the limitation period for filing an appeal under Section 260A(2)(a) of the Act commences from the date of receipt of the order by any of the officers named in the provision, including the CIT (Judicial). The Court further held that administrative instructions issued by the Department for its own administrative convenience cannot alter the time from which limitation will begin to run under Section 260A(2)(a) of the Act.
Issues: 1. Whether the limitation period for filing an appeal against an order of the ITAT under Section 260A(2)(a) of the Act commences from the date of receipt of the order by the 'concerned' CIT or from the date of receipt by any CIT, including the CIT (Judicial)? 2. Whether administrative instructions issued by the Department for its own administrative convenience can alter the time from which limitation will begin to run under Section 260A(2)(a) of the Act?
Ratio Decidendi: 1. The words 'received by the assessee or the Principal Chief Commissioner or the Chief Commissioner or Principal Commissioner' in Section 260A(2)(a) of the Act mean 'received' by any of the named officers of the Department, including CIT (Judicial). 2. There is no warrant for the Court to read into the provision a qualifying word such as 'concerned'. 3. The receipt of a copy of the order of the ITAT by any of those officers in the Department including the CIT (Judicial) will trigger the period of limitation. 4. Administrative instructions issued by the Department for its administrative convenience cannot alter the time when limitation would begin to run under Section 260A(2)(a) of the Act.
Final Decision: The Court answered the questions referred to it as follows: 1. The word ‘received’ occurring in Section 260A (2) (a) would mean received by any of the named officers of the Department, including CIT (Judicial). 2. In Section 260A (2) of the Act, the words CIT, Pr CIT or Chief CIT are not prefixed or qualified by the word ‘concerned’. There is no warrant for the Court to read into the provision such a qualifying word. The Court rejects the contention of the Revenue that limitation for the purposes of Section 260A (2) (a) begins to run only when a certified copy of the order of the ITAT is received by the ‘concerned’ CIT within whose jurisdiction the case of the Assessee falls notwithstanding that it may have been received by any other CIT, including the CIT (Judicial) prior thereto. 3. As far as the obligation of the ITAT under Section 254 (3) of the Act is concerned, the said obligation is satisfied once the ITAT sends a copy of an order passed by it to the Assessee as well as to the Pr CIT or the CIT or even the CIT (Judicial). The ITAT has to be simply go by the details as provided to it in the memo of parties. If there is a change concerning the jurisdiction of the CIT and it is some other CIT who has jurisdiction, it will not have the effect of postponing the commencement of the period of limitation in terms of Section 260A (2) (a) of the Act. The statute is not concerned with the internal arrangements that the Department may make by changing the jurisdiction of its officers. It is for the officer of the Department who first receives a copy of the ITAT’s order to reach it in time to the officer who has to take a decision regarding the filing of an appeal. 4. The decisions in CIT v. Arvind Construction Co. (supra) and CIT v. ITAT (supra) were rendered in the context of Section 256 of the Act (and not Section 260 A (2) (a) of the Act) and also prior to the decision in CIT v. Sudhir Choudhrie (supra). While the former decisions may not require reconsideration, they require to be reconciled with the latter decision in CIT v. Sudhir Choudhrie (supra). The decisions in CIT v. Arvind Construction Co. (supra) and CIT v. ITAT (supra) are of no assistance to the Revenue in its interpretation of Section 260 A (2) (a) of the Act. 5. While there is no requirement for the DR or CIT (Judicial) to apply for a certified copy of the ITAT, in any event under the extant ITAT Rules, a copy of the order is sent to the CIT (Judicial). In the context of Section 260A(2)(a) of the Act, once an order is listed for pronouncement in the ITAT, the DR or the CIT (Judicial) should be taken to be aware of the order. From that point, it is a purely an internal administrative arrangement as to how the DR or CIT (Judicial) obtains and further communicates the order to the officer who has to take a decision on filing the appeal. It is possible that immediately after pronouncement, the AR or the DR or both may apply for a certified copy of the order of the ITAT. In that case, the time taken for the certified copy to be readied for collection by the applicant will be excluded while computing limitation. But here again, if earlier to such date, a copy is received by a party from the ITAT, then such earlier date will be the starting point for limitation. 6. The receipt of a certified copy of the order of the ITAT by CIT (Judicial) would trigger the commencement of the limitation period under Section 260 A (2) (a) of the Act. 7. Where there, is a common order of the ITAT covering the several appeals, limitation would begin to run when a certified copy is received first by either the CIT (Judicial) or one of the officers of the Department and not only when the CIT ‘concerned’ receives it. When the same CIT has jurisdiction for more than one Assessee, the limitation begin to run for all from the earliest of the dates when the DR of CIT (Judicial) or any CIT first receives the order in any of the cases forming part of the batch disposed of by the common order. If there are four separate orders passed, then the limitation begins to run when such separate orders are received first by any officer of the Department. 8. Instructions issued by the Department for its administrative convenience cannot alter the time when limitation would begin to run under Section 260A(2)(a) of the Act. To reiterate these administrative instructions are for the administrative convenience of the Department and will not override the statute, in particular, Section 260A (2) (a) of the Act.
S. Muralidhar, J.
Introduction
1. The central question that arises for consideration before this Bench is whether the words "the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner" in Section 260A (2) (a) of the Income Tax Act, 1961 ('Act') mean only the 'jurisdictional' Principal or Chief Commissioner of Income-tax (CIT) or could it include any CIT including the CIT (Judicial)?
2. The question assumes significance in light of the stand of the Revenue that unless the 'jurisdictional' CIT receives a certified copy of the order of the Income Tax Appellate Tribunal (ITAT), the limitation of 120 days within which an appeal has to be filed does not commence. It requires to be clarified at the outset that the expressions 'Revenue' and 'Department' are used interchangeably throughout the judgment. Both expressions refer to the Income Tax Department.
Background facts in ITA 755 & 756 of 2015
3. In I.T.A. Nos. 755 and 756 of 2015 are appeals by the Revenue, through the Principal CIT Delhi-IV under Section 260-A of the Act against a common order dated 29th October, 2014 passed by the ITAT in a large batch of 115 appeals. Both appeals were first filed on 25th August, 2015. Para 8 of both memoranda of appeal state that the impugned order of the ITAT "was received in the office of the Appellant on 28th April, 2015". Enclosed with both the appeals was only a typed copy of the impugned order of the ITAT. The Revenue proceeded to compute limitation on that basis and claimed, therefore, that the appeal was filed within time on 25th August, 2015.
4. The Court perused the photocopy of the certified copy of the impugned order, dated 29th October 2014 of the ITAT. The date stamp on the top right hand corner of the said order showed that it was delivered to the office of the CIT, Ghaziabad on 19th December, 2014. The left hand bottom corner contained an endorsement of the Tax Assistant dated 22/23rd December, 2014. The explanation offered was that at the time the appeals were heard before the ITAT, the CIT (Ghaziabad) was the concerned CIT as far as this Assessee was concerned. On the date of the dispatch of the impugned order of the ITAT, the memo of parties in the appeal before the ITAT showed the address of the CIT at Ghaziabad. Therefore, the certified copy of the order was sent to him and received by him on 19th December, 2014. Pursuant to certain administrative orders issued by the Income Tax Department ('Department') the jurisdiction relating to the Assessee was transferred to the CIT, Delhi-IV. The ITAT was, therefore, asked to send the certified copy of its order to the 'concerned' CIT, Delhi-IV. It was only after receiving the certified copy on 28th April 2015 that the said CIT Delhi-IV took a decision regarding filing of the appeals.
Background facts in ITA 52 of 2015
5. This appeal by the Revenue through the CIT-7 is against an order dated 16th May 2014 of the ITAT. At the hearing of the appeal on 1st September 2015, counsel for the Assessee raised a preliminary objection as regards limitation. It was pointed out by him that the photocopy of the certified copy of the impugned order of the ITAT bore a date stamp which showed that a copy had been received in the office of the CIT (Judicial) on 23rd July 2014. There were two other date stamps on the first page. One dated 25th July 2014 was in Hindi and was of the CIT, Central, New Delhi. The other was the stamp of the Office of CIT, Delhi-V with the date of 19th September, 2014. In para 6 of the memorandum of appeal, it was stated that the impugned order of the ITAT was served on the CIT-7 on 29th September, 2014 although there was no such date stamp anywhere on the first page of the photocopy of the impugned order. The counsel for the Assessee therefore contended that if a copy of the impugned order was available with the CIT (Judicial) on 23rd July 2014 or with the CIT (Central) on 25th July, 2014, then the present appeal which has been filed on 14th January,
