Vikas Nagelia vs Commissioner Of Income Tax
2022 Latest Caselaw 6071 Cal

Item No.20

               IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                       CIVIL APPELLATE JURISDICTION
                              APPELLATE SIDE
                             HEARD ON: 30.08.2022

                          DELIVERED ON:30.08.2022

                                   CORAM:

                 THE HON'BLE MR. JUSTICE T. S. SIVAGNANAM
                                     AND
           THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
                            MAT 868 of 2022
                                     With
                            I.A. No.CAN 1 of 2022
                                     With
                            I.A. No.CAN 2 of 2022


                                  Vikas Nagelia
                                     Vs.
                 Commissioner of Income Tax, Kolkata-II & Anr.

Appearance:-

Mr.   Ananda Sen
Mr.   R.C. Prusti
Mr.   S. Das
Mr.   B.K. Upadhayay                         .....      for the appellant.

Mr. Aryak Dutt                               ....     for the Union of India

                                 JUDGMENT

(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)

Re: I.A. CAN 1 of 2022

1. This application has been filed to condone the delay of 71

days in filing the instant appeal.

2. We have heard Mr. Ananda Sen, learned counsel for the

appellant. The notice on the respondents / department has been

served and affidavit-of-service has been filed. We have directed

Mr. Aryak Dutt, learned senior standing counsel to accept notice

on behalf of the respondents as the issue involved in the appeal

lies in a very narrow campus. The Ministry / department shall

regularise his engagement.

3. We are satisfied with the reasons assigned in the affidavit

filed in support of the application. The delay in filing the

instant appeal is condoned.

4. The application being I.A. CAN 1 of 2022 is allowed.

Re: MAT 868 of 2022

5. This intra Court appeal at the instance of the writ

petitioner is directed against the order dated 6 th December, 2021

in W.P.A. No.4082 of 2021. In the said writ petition, the

appellant had challenged the order passed by the Commissioner of

Income Tax, Kolkata-II, Kolkata (CIT) dated 26 th February 2013

under section 264 of the Income Tax Act, 1961 (hereinafter

referred to as the 'said Act'). The learned Single Bench was of

the opinion that the writ petition was filed belatedly and the

appellant was not vigilant and diligent of his rights and has

slept over the matter and therefore, no relief can be granted

and accordingly, the writ petition stood dismissed. The

correctness of the said order is put to challenge in this

appeal.

6. We have elaborately heard the learned Advocate appearing

for the appellant and Mr. Aryak Dutt, learned senior standing

counsel for the respondents/department, whom we had directed to

accept notice on behalf of the respondents/department with a

direction to the Ministry/department so as to regularise his

engagement. Since the issue involved in this appeal lies in a

very narrow campus, the appeal itself is taken up for disposal.

The following dates and events would be relevant to examine the

conduct of the appellant.

7. The assessment for the year 2009-2010 was completed by the

assessing officer under section 143(3) of the said Act.

Admittedly no appeal was filed before the first appellate

authority against the said assessment order but the appellant

chose to file a revision petition under section 264 of the said

Act before the CIT. The said application was dismissed by an

order dated 26th February, 2013 on the ground that none appeared

for the appellant when the petition was taken up for hearing on

the adjourned date. The appellant being aggrieved by such order

appears to have been advised to file an appeal before the Income

Tax Appellate Tribunal, Kolkata and accordingly, an appeal was

preferred sometime in the year 2013 and the appeal was

entertained in ITA 2548/Kol/2013. On 25th September, 2014 the

appeal was dismissed as withdrawn by recording the submission of

the learned advocate for the appellant that the appellant had

wrongly filed the appeal against the order passed by the CIT

under section 264 of the said Act.

8. The case of the appellant is that he was not intimated

about the dismissal of the appeal as having been withdrawn and

that he has not given any instruction to withdraw the appeal.

Later after having come to know about the same, a representation

was addressed to the Registrar of the learned tribunal dated 18 th

December, 2020 requesting the Registrar of the learned tribunal

to inform the status of the appeal filed by the appellant and

also provide a certified copy of the order, if any, passed by

the learned tribunal. The said representation was not attended

to nor any reply was received by the appellant. It is the

appellant's case that thereafter a server copy of the said order

was obtained from the website of the learned tribunal and the

writ petition was filed before this Court on 4th February, 2022.

9. The question would be whether the above dates and events

could be taken as if the appellant has slept over his rights and

had not been diligent in prosecuting the matter. In our

considered view, the appellant cannot be stated to be a habitual

defaulter but nevertheless did not take active steps to follow

up the matter with the consultants/Advocate, who was engaged to

file the appeal before the tribunal. Though the appeal was

presented against an order passed under section 264 of the said

Act, such appeal was not maintainable and the registry of the

learned tribunal had entertained the appeal and it was assigned

as ITA 2548/Kol/2013. Therefore, the explanation offered by the

appellant that he was under the belief that the appeal would be

heard and decided on merits appears to be reasonable as the

appeal was not returned by the registry of the learned tribunal

on the ground of maintainability.

10. With regard to the averments that no instruction was given

by the appellant to withdraw the appeal to the earlier

consultant etc., are of self-serving statement of the appellant

of which we cannot take any cognizance. Nevertheless, we are

convinced that the conduct of the appellant cannot be stated to

be so bad to hold that he had slept over his rights. The

appellant had been prosecuting the matter before a wrong forum.

In any event, the appellant should not be left remediless and

should not be non-suited even to avail the revisional remedy,

more particularly when the appellant chose not to avail a

statutory appeal before the first appellate authority against

the assessment. Therefore, the only remedy available to the

appellant is to file a revision petition under section 264 of

the said Act, which was done by the appellant and such

revisional application was made as early as on 5th March, 2012.

11. The revisional authority also has not dealt with the matter

though it appears that the revisional authority had called for a

report from the assessing officer on the grounds raised by the

assessee. We also find from the order dated 26 th February, 2013

passed by the revisional authority, the report called for from

the assessing officer has been received by the revisional

authority. Therefore, we are of the view that the revision ought

to be heard and disposed of on merits. However, noting that the

matter is a long pending matter and the appellant has been

pursuing his remedy before a wrong forum and the appeal before

the tribunal was withdrawn and the appellant would state that he

never instructed his consultant to withdraw the appeal etc., we

are of the view that if the appellant requires one more

opportunity to contest the revision petition on merits, he

should be put on terms.

12. In terms of the assessment order dated 26th December, 2011,

the net amount of tax payable is Rs. 28,76,710/-. It is not

clear as to whether any recovery proceedings have been initiated

against the appellant for recovery of the said tax, as computed

by the assessing officer. However, in order to afford an

opportunity to contest the matter on merits, we direct the

appellant that the appellant shall deposit 15% of Rs.

28,76,710/- before the assessing officer within three weeks from

the date of receipt of the server copy of this judgment and

order. If such deposit is effected, the appellant is directed to

file a petition before the Commissioner of Income Tax-II,

Kolkata along with the receipt requesting the revisional

application to be taken up on merits.

13. If such petition is filed, the revisional authority shall

take into consideration the same and decide the revision

petition filed under section 264 of the said Act on 5th March,

2012 on merits and in accordance with law. Consequently, the

order dismissing the revision petition for default dated 26th

February, 2013 stands set aside.

14. If the appellant fails to comply with the above condition

within the time stipulated, the benefit of this judgment and

order will not enure in favour of the appellant and the appeal

will be dismissed automatically without reference to this Court.

15. With the aforesaid direction, the appeal and the connected

application (I.A. No. CAN 2 of 2022) are disposed of.

16. There shall be no order as to costs.

17. Urgent photostat certified copy of this order, if applied

for, be furnished to the parties expeditiously upon compliance

of all legal formalities.

(T.S. SIVAGNANAM, J)

I agree,

(HIRANMAY BHATTACHARYYA, J.)

NAREN/PALLAB (AR.C)