Vikas Nagelia v. Commissioner Of Income Tax, Kolkata-Ii & Anr

Item No.20 IN THE HIGH COURT OF JUDICATURE AT CALCUTTACIVIL 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 2022WithI.A. No.CAN 1 of 2022WithI.A. No.CAN 2 of 2022 Vikas Nagelia Vs. Commissioner of Income Tax, Kolkata-II & Anr. Appearance:- Mr. Ananda SenMr. R.C. PrustiMr. S. DasMr. 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 71days in filing the instant appeal. 2.We have heard Mr. Ananda Sen, learned counsel for theappellant. The notice on the respondents / department has beenserved and affidavit-of-service has been filed. We have directedMr. Aryak Dutt, learned senior standing counsel to accept noticeon behalf of the respondents as the issue involved in the appeallies in a very narrow campus. The Ministry / department shallregularise his engagement. 3.We are satisfied with the reasons assigned in the affidavitfiled in support of the application. The delay in filing theinstant 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 writpetitioner is directed against the order dated 6[th] December, 2021in W.P.A. No.4082 of 2021. In the said writ petition, theappellant had challenged the order passed by the Commissioner ofIncome Tax, Kolkata-II, Kolkata (CIT) dated 26[th] February 2013under section 264 of the Income Tax Act, 1961 (hereinafter referred to as the ‘said Act’). The learned Single Bench was ofthe opinion that the writ petition was filed belatedly and theappellant was not vigilant and diligent of his rights and hasslept over the matter and therefore, no relief can be grantedand accordingly, the writ petition stood dismissed. Thecorrectness of the said order is put to challenge in thisappeal.6.We have elaborately heard the learned Advocate appearingfor the appellant and Mr. Aryak Dutt, learned senior standingcounsel for the respondents/department, whom we had directed toaccept notice on behalf of the respondents/department with adirection to the Ministry/department so as to regularise hisengagement. Since the issue involved in this appeal lies in avery narrow campus, the appeal itself is taken up for disposal.The following dates and events would be relevant to examine theconduct of the appellant.7.The assessment for the year 2009-2010 was completed by theassessing officer under section 143(3) of the said Act.Admittedly no appeal was filed before the first appellateauthority against the said assessment order but the appellantchose to file a revision petition under section 264 of the saidAct before the CIT. The said application was dismissed by an order dated 26[th] February, 2013 on the ground that none appearedfor the appellant when the petition was taken up for hearing onthe adjourned date. The appellant being aggrieved by such orderappears to have been advised to file an appeal before the IncomeTax Appellate Tribunal, Kolkata and accordingly, an appeal waspreferred sometime in the year 2013 and the appeal wasentertained in ITA 2548/Kol/2013. On 25[th] September, 2014 theappeal was dismissed as withdrawn by recording the submission ofthe learned advocate for the appellant that the appellant hadwrongly filed the appeal against the order passed by the CITunder section 264 of the said Act. 8.The case of the appellant is that he was not intimatedabout the dismissal of the appeal as having been withdrawn andthat he has not given any instruction to withdraw the appeal.Later after having come to know about the same, a representationwas addressed to the Registrar of the learned tribunal dated 18[th]December, 2020 requesting the Registrar of the learned tribunalto inform the status of the appeal filed by the appellant andalso provide a certified copy of the order, if any, passed bythe learned tribunal. The said representation was not attendedto nor any reply was received by the appellant. It is theappellant’s case that thereafter a server copy of the said order was obtained from the website of the learned tribunal and thewrit petition was filed before this Court on 4[th] February, 2022.9.The question would be whether the above dates and eventscould be taken as if the appellant has slept over his rights andhad not been diligent in prosecuting the matter. In ourconsidered view, the appellant cannot be stated to be a habitualdefaulter but nevertheless did not take active steps to followup the matter with the consultants/Advocate, who was engaged tofile the appeal before the tribunal. Though the appeal waspresented against an order passed under section 264 of the saidAct, such appeal was not maintainable and the registry of thelearned tribunal had entertained the appeal and it was assignedas ITA 2548/Kol/2013. Therefore, the explanation offered by theappellant that he was under the belief that the appeal would beheard and decided on merits appears to be reasonable as theappeal was not returned by the registry of the learned tribunalon the ground of maintainability.10.With regard to the averments that no instruction was givenby the appellant to withdraw the appeal to the earlierconsultant etc., are of self-serving statement of the appellantof which we cannot take any cognizance. Nevertheless, we areconvinced that the conduct of the appellant cannot be stated to be so bad to hold that he had slept over his rights. Theappellant had been prosecuting the matter before a wrong forum.In any event, the appellant should not be left remediless andshould not be non-suited even to avail the revisional remedy,more particularly when the appellant chose not to avail astatutory appeal before the first appellate authority againstthe assessment. Therefore, the only remedy available to theappellant is to file a revision petition under section 264 ofthe said Act, which was done by the appellant and suchrevisional application was made as early as on 5[th] March, 2012. 11.The revisional authority also has not dealt with the matterthough it appears that the revisional authority had called for areport from the assessing officer on the grounds raised by theassessee. We also find from the order dated 26[th] February, 2013passed by the revisional authority, the report called for fromthe assessing officer has been received by the revisionalauthority. Therefore, we are of the view that the revision oughtto be heard and disposed of on merits. However, noting that thematter is a long pending matter and the appellant has beenpursuing his remedy before a wrong forum and the appeal beforethe tribunal was withdrawn and the appellant would state that henever instructed his consultant to withdraw the appeal etc., we are of the view that if the appellant requires one moreopportunity to contest the revision petition on merits, heshould be put on terms. 12.In terms of the assessment order dated 26[th] December, 2011,the net amount of tax payable is Rs. 28,76,710/-. It is notclear as to whether any recovery proceedings have been initiatedagainst the appellant for recovery of the said tax, as computedby the assessing officer. However, in order to afford anopportunity to contest the matter on merits, we direct theappellant that the appellant shall deposit 15% of Rs.28,76,710/- before the assessing officer within three weeks fromthe date of receipt of the server copy of this judgment andorder. If such deposit is effected, the appellant is directed tofile a petition before the Commissioner of Income Tax-II,Kolkata along with the receipt requesting the revisionalapplication to be taken up on merits. 13.If such petition is filed, the revisional authority shalltake into consideration the same and decide the revisionpetition filed under section 264 of the said Act on 5[th] March,2012 on merits and in accordance with law. Consequently, theorder dismissing the revision petition for default dated 26[th]February, 2013 stands set aside. 14.If the appellant fails to comply with the above conditionwithin 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 connectedapplication (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 appliedfor, be furnished to the parties expeditiously upon complianceof all legal formalities. (T.S. SIVAGNANAM, J) I agree, (HIRANMAY BHATTACHARYYA, J.) NAREN/PALLAB (AR.C)