Saturday, 26 May 2018

HC : Holds Revenue's appeal 'in-time', accepts Tribunal order 'non-receipt' plea; Explains ITAT's duty

Uttarakhand HC dismisses Hyundai's objections, holds that the appeal filed by Revenue against ITAT ruling is within the time-limit prescribed u/s. 260A ; Hyundai contended based on RTI records that while the Tribunal order had been served on CIT's office in September, 2009, the tax department filed the appeal in HC only in July 2011, thereby resulting in the Revenue appeal being barred by limitation; HC observes contradiction in the stand taken by assessee, where it is stated at one place that the Tribunal order was 'dispatched' on September 9, 2009 while at another place it is contended that the order was 'served' on September 9; Accepting tax department's submission that the order copy was not received on the said date, i.e. September 9, 2009 but only in March, 2011, HC goes on to observe that “the respondent/assessee has not, apparently, made any efforts to ascertain whether the impugned order, which is alleged to have been dispatched on 09.9.2009, has actually been served, which could have been done by way of making queries with the post-office.”;  HC interprets ‘receipt’ u/s. 260A to hold that “receipt is to be understood as meaning that there is a duty also on the Tribunal to communicate the order to the person, who is entitled to lodge the appeal.”;  HC further rejects assessee's arguments that sought to impute knowledge of the ITAT order on the part of Revenue by virtue of it being a party to various writ petitions & Sec. 263 proceedings, remarks that “it would not be an actual accrual of cause of action to file an appeal as provided under law, unless received.”;  Also rejects assessee’s reliance on CBDT circular of August, 2011, clarifies that the CBDT circular only contemplates that there is duty to intimate the Tribunal about the change of jurisdiction if there is one during the pendency of the appeal, which fact per se is not established, moreover observes that it is not clear as to whether Circular obliges the authority to follow it:HC 

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