Laxmi Traders Vs. Commissioner of Income-tax - Court Judgment

SooperKanoon Citationsooperkanoon.com/529440
SubjectDirect Taxation
CourtOrissa High Court
Decided OnNov-20-1986
Case NumberO.J.C. No. 488 of 1979
JudgeHarilal Agrawal, C.J. and ;S.C. Mohapatra, J.
Reported in[1987]168ITR253(Orissa)
ActsIncome Tax Act, 1961 - Sections 184(4) and 185
AppellantLaxmi Traders
RespondentCommissioner of Income-tax
Appellant AdvocateR. Mohapatra and ;Deepak Misra, Advs.
Respondent AdvocateStanding Counsel
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....s.c. mohapatra, j.1. in this application under articles 226 and 227 of the constitution of india, the assessee under the income-tax act, 1961 (for short ' the act '), has assailed the decision (annexure-4) of the commissioner of income-tax (opposite party no. 1) and has prayed for quashing the same by issue of a writ in the nature of certiorari and to issue such other writ as the circumstances would demand.2. the petitioner is a partnership firm. it applied on june 29, 1976, for registration of the firm which was required to be filed on or before march 31, 1976. the explanation for the delay was not accepted by the income-tax officer who refused the same on december 31, 1976, on the ground of limitation. the petitioner carried a misconceived appeal treating the order to be one under.....
Judgment:

S.C. Mohapatra, J.

1. In this application under Articles 226 and 227 of the Constitution of India, the assessee under the Income-tax Act, 1961 (for short ' the Act '), has assailed the decision (annexure-4) of the Commissioner of Income-tax (opposite party No. 1) and has prayed for quashing the same by issue of a writ in the nature of certiorari and to issue such other writ as the circumstances would demand.

2. The petitioner is a partnership firm. It applied on June 29, 1976, for registration of the firm which was required to be filed on or before March 31, 1976. The explanation for the delay was not accepted by the Income-tax Officer who refused the same on December 31, 1976, on the ground of limitation. The petitioner carried a misconceived appeal treating the order to be one under Section 185 of the Act. The Appellate Assistant Commissioner dismissed the appeal on the ground that the order being one under Section 184(4) of the Act is not entertainable. Against the said order, a second appeal was filed before the Appellate Tribunal. Whether the order would be appealable was the subject-matter of consideration of this court since the Appellate Tribunal had held that such orders were under Section 185 of the Act and were appealable. On a reference under Section 256 of the Act of the said question, this court answered the question by stating that an application for registration which is refused on the ground of delay in exercise of the power under Section 184(4) is not appealable. The decision has been reported as New Orissa Traders v. CIT, : [1977]107ITR553(Orissa) . Following the aforesaid decision, the Appellate Tribunal dismissed the second appeal as not maintainable. Realising the mistake, the assessee preferred an application for revision before the Commissioner where another mistake was committed by seeking revision of the order of the Appellate Tribunal. After hearing the petitioner, the Commissioner held that no revision lay against an order of the Appellate Tribunal and the order of the Income-tax Officer dated December 31, 1976, cannot be considered for revision long after one year.

3. Mr. Rajan Mohapatra, learned counsel appearing for the petitioner, submitted that the facts of this case are tell-tale on the face of the record. He submitted that the advice to prefer appeal given to the petitioner was also the view of the Appellate Tribunal till the matter was settled by this court which was reported only in the year 1977. If this would have been considered by the Commissioner, he would haveapplied the principle of Section 14 of the Limitation Act, 1963, and would have entertained the revision application to consider the correctness of the order of the assessing officer on its own merits. Approach to authorities having no jurisdiction, in good faith, should have been considered as sufficient cause for delayed application.

4. The very fact that a revision was filed against the order of the Appellate Tribunal would indicate that the petitioner acted on wrong advice. Besides, filing of an appeal at a time when the decision of this court was not reported when even the Appellate Tribunal was of the view that an appeal was entertainable cannot be said to be such gross laches that on the short ground of delay in preferring the revision, the same should, be rejected. In the peculiar circumstances of this case, I am satisfied that the Commissioner ought to consider the correctness of the reasons given by the Income-tax Officer and also the merits of the application for registration and pass appropriate orders as deemed proper.

5. In the result, the order of the Commissioner in annexure-4 is quashed and he is directed to hear the revision application. The writ application is allowed. No costs. Since the matter is long delayed, the petitioner is directed to appear before the Commissioner with a copy of the judgment on December 8, 1986 (Monday), on which date the Commissioner shall fix a date for hearing of the revision application.

Agrawal, C.J.

6. I agree.