Commissioner Of Income Tax,Kolkata-Xii, Kolkata v. Manoj Murarka

OD-22 ITA/181/2011 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE COMMISSIONER OF INCOME TAX,KOLKATA-XII, KOLKATA -Versus- MANOJ MURARKA Appearance:Mr. Om Narayan Rai, Adv....for the appellant. Mr. Arvind Agarwal, Adv.Mr. Farhan Ghaffar, Adv....for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA Date : 24[th] November, 2022. The Court : This appeal filed by the revenue underSection 260A of the Income Tax Act, is directed against theorder dated 21[st] May, 2004 passed by the Income Tax AppellateTribunal, “A” Bench, Kolkata (the Tribunal) in ITA No.1239/Kol/2003 and ITA No.1180/Kol/2003 for the assessment year1998-99. The appeal was admitted on 28[th] November, 2011 on the following substantial questions of law: (i)Whether on the facts and in the circumstancesof the case the Income Tax Appellate Tribunalerred in law in holding that the sum ofRs.20,91,38,000/- should not be treated aspart of the consideration for sale ofof the case the Income Tax Appellate Tribunalerred in law in holding that the sum ofRs.20,91,38,000/- should not be treated aspart of the consideration for sale of membership card but compensation received inthe nature of capital receipt not liable totax ?the nature of capital receipt not liable totax ?(ii)Whether on the facts and in the circumstancesof the case the Income Tax Appellate Tribunalerred in law in holding that the compensationreceived was for loss of source of Income andas such capital receipt not liable to tax ?of the case the Income Tax Appellate Tribunalerred in law in holding that the compensationreceived was for loss of source of Income andas such capital receipt not liable to tax ?(iii)Whether the sum of Rs.20,91,38,000/- should betreated as part of sale consideration fortransfer of membership card of Delhi StockExchange in terms of agreement dated January5, 1995 and as such liable to be assessed aslong term capital gain ?treated as part of sale consideration fortransfer of membership card of Delhi StockExchange in terms of agreement dated January5, 1995 and as such liable to be assessed aslong term capital gain ? We have heard Mr. Om Narayan Rai, learned standingcounsel for the appellant/revenue and Mr. Arvind Agarwal,learned counsel assisted by Mr. Farhan Ghaffar, learnedAdvocate for the respondent/assessee. The first objection raised by the learned counsel forthe respondent is that the revenue has preferred appeal againstthe very same impugned order passed Tribunal in ITA/127/2006and the same was dismissed by the Hon’ble Division Bench byorder dated 17[th] May, 2006 and, therefore, a fresh appeal against the very same order passed by the learned Tribunal isnot maintainable. Secondly, it is submitted that before thisappeal was admitted, the application for condonation of delayin filing the appeal was heard by the Hon'ble Division Bench on21[st] November, 2011 on which date GA/1735/2011 and GA/1734/2011were listed. It is submitted that the delay of 2428 days wascondoned subject to payment of costs assessed at Rs.50,000/- tothe respondent/assessee by the Government, with a furtherdirection to recover the said amount from the concernedofficials of the Income Tax Department who were responsible forthe delay. It is submitted by the learned Advocate for therespondent that the order has not been complied with. On theabove two grounds, the learned Advocate for the respondentwould contend that the appeal requires to be dismissed. Mr. Om Narayan Rai, learned Advocate for theappellant/revenue submits that he does not have any specificwritten instruction as to whether the appeal in ITA/127/2006was filed challenging the very same impugned order in thisappeal as the order passed in ITA/127/2006 dated 17[th] May, 2006does not indicate the case number assigned to the matter by theTribunal. Therefore, the learned senior standing counsel seekstime to get instruction from the department.In our considered view, keeping the first issue raisedby the learned Advocate for the respondent as regards the maintainability of this appeal aside for the time being, if weperuse the order dated 21[st] November, 2011 in this appeal, adecision can be taken. For better appreciation, the order isquoted hereinbelow: “The Court:- We have heard the learned counselfor the parties and have gone through the applicationfor condonation of delay. The delay in preferring theappeal is 2428 days. The explanation given in thepetition is far from satisfactory. Ordinarily thematter of this nature should have been dismissed inlimine. However, when we notice the tax effect inthis matter is so high it would not be proper for usto reject this application without hearing the matter.Therefore, we reluctantly condone the delay and wethink that the appeal which is intended to beadmitted, be placed for hearing on next Monday. Thisorder allowing the prayer for condonation is subjectto payment of costs assessed at Rs.50,000/- to be paidby the appellant to the respondent. This cost shallinitially be paid by the Government, thereafter thedepartment concerned shall make an enquiry as to whoare at fault for not taking care for preservation ofthe records and papers. If any of the officers and/orstaff are found to be negligent, costs awarded by usshall be recovered from their salaries inproportionate to their lapses, of course after givinga chance of hearing to the concerned officer andstaffs.The cost has to be paid within a period of threeweeks from date as prayed for the learned Counsel for the appellant. In default of payment of costs thisorder will stand recalled and subsequent order, if anypassed in favour of revenue will also stand recalled.GA 1734 of 2011 is accordingly disposed of.” As noted above, the delay was condoned subject topayment of costs assessed at Rs.50,000/- by the Government tothe respondent/assessee. The learned Advocate for the respondent submits thattill date the costs has not been remitted. In suchcircumstances, the order dated 21[st] November, 2011 itselfprovides for the contingency. It has been ordered that indefault of payment of costs, the order condoning the delay willstand recalled. Thus, in absence of compliance of thedirection issued by the Hon’ble Division Bench in its orderdated 21[st] November, 2011 and the costs having not been paid tothe assessee, the order dated 21[st] November, 2011 is requiredto be recalled and is accordingly recalled. That apart, it is not clear as to how the appeal wasadmitted on 28[th] November, 2011 though three weeks was grantedto pay the costs. The submission made by the learned Advocate for therespondent that his client has not been paid the costs, isplaced on record. For the above reasons, the appeal filed by the revenue(ITA/181/2011) stands dismissed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) A/s./S.Das.