Commissioner of Income Tax, Kolkataiv, Kolkata Vs. M/S. Akzo Nobel India Limited - Court Judgment

ORDER

SHEET IN THE HIGH COURT AT CALCUTTA Special Jurisdiction [Income Tax].ORIGINAL SIDE GA No.1333 of 2013 ITAT No.100 of 2013 COMMISSIONER OF INCOME TAX, KOLKATA-IV, KOLKATA Versus M/S.AKZO NOBEL INDIA LIMITED (Formerly known as Akzo Nobel Coatings India Private Limited) BEFORE: The Hon'ble JUSTICE GIRISH CHANDRA GUPTA The Hon'ble JUSTICE SUDIP AHLUWALIA Date : 3rd March, 2014.

For Appellant : For Respondent : Mr.P.Dudharia, Advocate Mr.R.N.

Bajoria, Senior Advocate with Mr.A.Gupta and Mr.A.Mazumder, Advocates The Court : The subject matter of challenge in this appeal is a judgment and order dated 14th September, 2012 passed by the learned Income Tax Appellate Tribunal Banglaore Bench in ITA Nos.175 to 755 & 1131/Bang/2010 and ITA No.349/Bang/2011.

The appeal preferred by the revenue was admitted by an order dated 2nd July, 2013.

The appeal was thereafter taken up for hearing by us.

The appeal, as a matter of fact, was heard.

Today when the matter was taken up for further hearing, Mr.Bajoria, learned Senior Advocate appearing for the assessee-respondent, submitted that this Court has no jurisdiction to try and determine the appeal because the appeal is against an order passed by the Income Tax Appellate Tribunal, Bangalore.

He submitted that in that case the appeal can be entertained only by the Karnataka High Court.

He, in support of his submission, drew our attention to Section 260A of the Income Tax Act, which provides that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal.

He then drew our attention to Section 269, which defines High Court, inter alia, as follows: “ Section 269.

In this Chapter, “High Court” means – (i) in relation to any State, the High Court for that State;” He submitted that High Court in relation to the Income Tax Appellate Tribunal, Bangalore, would mean the High Court of that State, which is Karnataka High Court.

Therefore, this Court cannot entertain the appeal.

He also drew our attention to a judgment of this Court in the case of Commissioner of Income-Tax versus J.L.Morrison (India) Ltd., reported in 272 ITR321wherein the following view was expressed: “We hold that this Court cannot assume jurisdiction in respect of the matters reaching finality before the Tribunal in another State subject to the jurisdiction of the High Court of that State.” He also drew our attention to a judgment in the case of CIT versus A.B.C.India Limited, which was taken into consideration in the earlier judgment.

Mr.Dudharia, learned advocate appearing for the revenue/appellant, however, drew our attention to a judgment in the case of Commissioner of Income Tax versus AAR BEE Industries, reported in 357 ITR542wherein the following view was taken: “ We are afraid and with respect we say so that we are unable to agree with the views expressed by the Punjab & Haryana High Court and are bound to follow the decision of this court in Sahara India Financial Corpn.

LTD.(supra).We are not inclined to accept the view taken by the Punjab & Haryana High Court, because while it is true that the reference to the case is with regard to the jurisdiction of an income-tax authority, it is also true that the jurisdiction of the High Court is determined by the situs of the Assessing Officer.

When the Assessing Officer itself has been changed from one place to another, the High Court exercising jurisdiction in respect of the territory covered by the transferee Assessing Officer would be the one which would have jurisdiction to hear the appeal under Section 260A.

Even in Ambica Industries (supra).a decision relied upon by the learned counsel for the respondent/assessee, it has been held that it would be the situs of the Assessing Officer and not the situs of the Tribunal which would have the determinative factor with regard to the jurisdiction of the High Court hearing an appeal.

Of course, the decision in Ambica Industries (supra) was not one rendered under the Income–tax Act, but was one which pertained to an appeal to the High Court under the Central Excise Act, 1944.

We may also point out that the Central Excise Act does not deal with a transfer of a ‘case’ as is the position under the Income-tax Act.

In any event, there is nothing in Ambica Industries (supra).which would enable us to take a view different from that taken by this court in Sahara India Financial Corpn.

LTD.(supra).It is a well accepted principle that there can be only one Assessing Officer in respect of a case.

At the point of time when the present appeals were filed, the Assessing Officer insofar as all the cases of the respondent were concerned, was the Assessing Officer at Delhi.

The fact that the Amritsar Bench of the Tribunal had passed the impugned orders or the fact that the initial assessment orders were passed by the Assessing Officer at Jammu would not be relevant for the purposes of determining the jurisdiction of the court at the point of time at which an appeal under Section 260A of the said Act is filed.

It is the date on which the appeal is filed which would be the material point of time for considering as to in which court the appeal is to be filed.

On the dates on which the present appeals were filed, the Assessing Officer of the respondent was Assessing Officer at New Delhi and, therefore, this court would have jurisdiction to entertain these appeals.” We have considered the rival submissions advanced by the learned advocates appearing for the parties and are of the opinion that the view expressed by this Court is preferable to that of the view expressed by the Delhi High Court.

Section 260A provides that an appeal shall lie to the High Court from an order passed by the appellate tribunal.

The appellate tribunals are located in every State except those cases where an appellate tribunal may have been entrusted with the jurisdiction of more than one State.

The word “High Court” used in Section 260A has to be understood in the light of the Section 269 quoted above, which provides that “High Court” means, in relation to any State, the High Court for that State.

There can be no dispute that High Court in relation to the State of Karnataka, where the appellate tribunal is situated, which delivered the impugned judgment and order, is the High Court of that State.

On the top of that, sub-Section 7 of Section 260A provides, inter alia, as follows: “(7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908).relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.

The other relevant provision is Section 100 of Code of Civil Procedure, which provides as follows: “Section 100.

Second appeal.

– (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.” Under Section 260A, orders passed by the learned Appellate Tribunal are appealable to the High Court on a substantial question of law.

Sub-section 1 of Section 100 of the Code of Civil Procedure, quoted above, permits a second appeal from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question.

When Section 260A and Section 269 of the Income Tax Act are read in conjunction with Section 100(1) of the Code of Civil Procedure, the answer is irresistible that the appeal shall lie only before the Karnataka High Court and not before this Court.

Considering the view we have taken, this appeal cannot be heard.

Mr.Dudharia submitted that in that case an order should be passed in the same line as was done in the case of J.L.Morrison (supra) granting adequate opportunity to the appellant to present the appeal before the jurisdictional High Court.

This prayer of Mr.Dudharia was not objected to by Mr.Bajoria.

The appellant is as such granted liberty to present the appeal before the appropriate Court within six weeks from date.

The time consumed in pursuing the appeal before this Court should be excluded under Section 14 of the Limitation Act because this Court also erred in admitting the appeal.

(GIRISH CHANDRA GUPTA, J.) (SUDIP AHLUWALIA, J.) sm AR[CR].