Income Tax Appellate Tribunal - Delhi
Acit, New Delhi vs New Delhi Television Ltd., New Delhi on 23 March, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCHES: 'I-2', NEW DELHI
BEFORE SRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER
AND SRI AMIT SHUKLA, JUDICIAL MEMBER
CROSS OBJECTION NO. 313/Del/2014
(IN ITA No. 5091/Del/2010)
AY: 2007-08
ACIT, Circle 13(1) vs. NDTV Ltd.
New Delhi 207, OkhlaIndl. Area
Phase III, New Delhi
PAN: AAACN 0865 D
(Appellant) (Respondent)
Appellant by : Sh. Girish Dave, Special Counsel
Respondent by: Sh. CS Aggarwal, Sr.Adv. &
Sh. KM Gupta, Adv.
Date of hearing : 20.03.2017
Date of pronouncement : 23.03.2017
ORDER
PER AMIT SHUKLA, JUDICIAL MEMBER:
The aforesaid Cross Objection has been filed by the revenue in relation to ITA No.1212/Del/2014, filed by the assessee for the Assessment Year 2009-10.The grounds of cross objection raised by the department read as under:-
2"1. That appeal being only a statutory right and not an inherent right, no appeal is provided by the statute against the present order passed by the Assessing Officer u/s 144 of the Act pursuant to the directions issued by the DRP, because section 253(1)(d) of the Act restricts the assessee's right to appeal only to an assessment order passed under section 143(3), section 147, section 153A and section 153C of the Act.
2. That as per the provisions of section 253(1)(d) read with section 253(2A) of the Act, whereas the Commissioner has been given right to object to 'any direction of DRP', but the right to appeal 'against directions of DRP' is not given to the assessee as is given to the Commissioner in section 253(2A) of the Act.
3. That the present appeal filed by the assessee before this Hon'ble Tribunal is non-maintainable and is liable to be dismissed by Ld. Tribunal in-limini.
4. That the Respondent craves to be allowed to add any fresh grounds of cross-objections and/or delete or amend any of the grounds of cross-objections.
In view of the non-maintainability of appeal led by the assessee, for want of strict non-availability of jurisdiction with this Hon'ble Tribunal, it is prayed that this Hon'ble Tribunal may kindly be pleased to dismiss the appeal filed by the assessee."3
2. At the outset, the 'Cross Objections' filed by the revenue is barred by limitation in terms of section 253(4),as there is a delay of 169 days as per the statutory time limit for filing the cross objection. The Dy.CIT, Circle 13(1), New Delhi (herein refer to as DCIT), along with the said Cross Objection has filed detailed reasons for grounds taken in the cross objection as well as requested for condonation of delay on the following ground:-
"That the Respondent has been, for good and sufficient reasons, extremely preoccupied with sensitive cases being dealt with by him and where there is ding and ongoing litigation up to the Hon'ble Supreme Court having substantial revenue implications, and was unable to move the present Cross Objections in the instant appeal filed by the assessee within the time permitted u/s 253(4) of the Act and humbly prays for the condonation of the delay by this Hon'ble Tribunal in filing the present Cross Objections in the appeal filed by the assessee u/s 253(5) of the Act.
2.1. Later on, it was pointed out by the Registry that the said condonation of delay is not accompanied by an affidavit. In pursuance thereof, a purported affidavit in support of the facts stated for the condonation of delay in filing of the cross objection, was filed by the DCIT which was on the plain paper with his signature only. The so called affidavit was neither administered by the competent authority nor was it identified/verified by any Court officer/ or a notary. On the objections raised by the assessee that it 4 is not an affidavit, this Tribunal on earlier date of hearing, vide order sheet entry dated 3.2.2016 made the following observations:-
"At the outset, the Ld. Senior Counsel, Sh. C.S. Aggarwal, raised a preliminary objection against the maintainability of the Cross Objection No.313I/e1/2014 on the basis that it is barred by limitation as the same has been preferred by the Revenue late by 169 days as also pointed out by the Registry of the Tribunal. Sh. Sanjay Mishra, Ld. Principal CIT(DR) submitted that the Revenue has already filed application for condonation of delay supported with the affidavit that the delay was due to heavy pre-occupation of the Assessing Officer with sensitive cases pending and ongoing litigation up to the Hon'ble Supreme Court having substantial revenue implications and thus he was unable to move the cross objection within the time prescribed under Section 253(4) of the Act. Ld. Senior Counsel opposed the application with the contention that the reasons shown by the Assessing Officer are vague and without referring any evidence in support. He also contended that the affidavit of the Assessing Officer filed in support of the application for condonation of delay is not duly attested by the Oath Commissioner. Hence, the same cannot be entertained.
On perusal of the record, we find that the affidavit filed by the A.O. in support of the explanation for delay in filing the CO by 169 days is not duly attested and hence the same cannot be entertained. The Revenue is thus directed to remove the defect so that the application for 5 condonation of delay may be heard and disposed off by the Bench."
2.2. Thereafter the Ld. DCIT filed another so-called affidavit,the contents of which reads as under:-
"HON'BLE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH In the matter of Mrs. New Delhi Television Limited for the Assessment Year 2009-10.
Affidavit for Condonation of Delay in filing the Cross Objections against ITA No. 1212/Del/2014 filed by M/s. New Delhi Television Limited against Assessment Order passed by Assistant Commissioner of Income Tax, Circle 13(1), New Delhi.
I, Bhupinderjit Kumar, aged about 47 years, son of Late Shri Parkash Chand, presently posted as Deputy Commissioner of Income Tax. Circle-18(1), New Delhi do solemnly affirm and state on oath as under:-
1) That the final assessment order in the case of M/s New Delhi Television Limited, 207, Okhla Industrial Estate, Phase-Ill, New Delhi for Assessment Year 2009-10 was passed U/S 144 read with section 144C(13) of the lncome Tax Act, 1961 on 21.02.2011 by then Assessing Officer, Assistant Commissioner of Income Tax, Circle-13(1), New Delhi (now Circle 18(1), New Delhi),
2) That M/s New Delhi Television Limited, has filed appeal in ITA 1212/Del/2014 against the above assessment order.
3) That the cross objections against the above appeal were filed before this Hon'ble Tribunal on 17.11.2014 and the affidavit in support of the Cross Objections was filed on 07.12.2014.
4) That the limitation for filing cross objections before this Hon'ble Tribunal expired on 02.05.2014 and therefore, the cross objections are delayed by 200 days.
5) That the prayer for condonation of delay in filing the cross objections was made in the cross objections itself, but the 6 Registry has raised the objections that separate affidavit praying for condonation of delay was not enclosed and accordingly, affidavit was filed on 7.12.2014.
6) That vide order dated 03.02.2016, the Hon'ble ITAT was pleased to direct the Revenue to remove the defect in the affidavit filed 07.12.2014, i.e., to file affidavit duly attested by the Oath Commissioner. Accordingly, the present affidavit duly attested by Oath Commissioner is being filed.
7) That as submitted ill the cross objections filed on 17.11.20 14, the Respondent has been, for good and sufficient reasons extremely preoccupied with sensitive cases being dealt with by him and where there is pending and ongoing litigation up to the Hon'ble Supreme Court having substantial revenue implications, and was unable to move the Cross Objections in the instant appeal filed by the assessee within the time permitted u/s 253(4) of the Act and humbly prays for the condonation of delay by this Hon'ble Tribunal in filing the C.O. u/s 253(5) of the Act.
8) That under the above circumstances, the Cross Objections filed by the respondent on 17.11.2014 got delayed.
9) That the delay is bona fide due to the circumstances stated above, In view of the above, it is humbly prayed that this Hon'ble Tribunal may kindly be pleased to condone the delay in filing the cross objections.
Date: 12.04.2016 Sd/: Deponent
Place: New Delhi
VERIFICATION
I, Bhupinderjit Kumar, the above named deponent do hereby verify that the contents of para 1 to 9 are true to the best of my knowledge and belief.7
Date: 12.04.2016 Sd/: Deponent
Place: New Delhi
: Stamped by: Notary Public, New Delhi (India):
: 12th April, 2016:
3. Before us the Ld. Special counsel for the Revenue, Shri Girish Dave submitted that the reasons stated in the petition as well as in the affidavit for the condonation of delay should be favourably considered and delay should be condoned for the reason that, firstly, the issue which has been raised in the 'Cross Objection' is a jurisdictional issue and challenges the very validity of entertaining the Assessee's appeal by this Tribunal; secondly, the revenue cannot be precluded from raising this issue before this Tribunal even without cross objection; and lastly, reasons cited for not filling the appeal by the DCIT falls in the realm of 'reasonable cause' and hence delay should be condoned. On merits of the issue raised in the Cross Objections a detail written submission has been fled before us.
4 On the other hand the Ld. Senior counsel, Shri C.S. Agarwal appearing on behalf of the assessee, strongly objected to the petition of the revenue seeking condonation of delay on the ground that, firstly, the condonation of delay is not accompanied by any valid affidavit as it has not been sworn before the oath Commissioner and therefore, inadmissible in law; and secondly, no sufficient cause has been mentioned for seeking condonation of delay, because the grounds raised by the DCIT are very vague that 8 he was preoccupied in some sensitive matters pending before the Hon'ble Supreme Court having substantial revenue implications, without specifying as to what was the nature of his involvement. Further he pointed out that from the reading of the so-called reasons it can be seen that the ld. DCIT himself has come to a conclusion that there was good and sufficient cause for not filing the cross objection in time. The whole approach of DCIT is casual and tantamount to remissness; and is clearly an afterthought. The reasons given by the DCIT is not backed up by any material on record to substantiate the so called averment made by him in the petition for condonation of delay. A detail objections has been filed by the assessee before us in this regard.
5. We have heard the rival submissions and also perused relevant material placed on record qua the preliminary issue of condonation of delay in filing the 'Cross Objections'. Admittedly in this case the Cross Objection has been filed much beyond the statutory time limit of filing the Cross Objection u/s 253(4) as there is a delay of 169 days. First of all, from a bare perusal of the purported affidavit filed by the Ld. DCIT, it is noted that the same is not in accordance with the provisions of law, in as much as, it suffers from various infirmities which cannot be reckoned as an affidavit at all. An 'affidavit' contains averments of facts which has been deposed to by the deponent who is under oath to correctly state the facts and such an averment on oath is confined to such facts as the deponent is able to prove the facts and must 9 substantiate the grounds stated thereof. The provisions contained in Order XIX Rule 3(1) of Civil Procedure Code states as under:-
"3. Matters to which affidavits shall be confined:
(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted:
Provided that the grounds thereof are stated".
5.1. Thus, if a person chooses to rely on an affidavit for relying on certain facts, then such an affidavit should clearly express how much is the statement based on the deponent's knowledge and how much is the statement of his belief and the grounds or belief must be stated with sufficient particularity so that the courts can safely act upon the deponent's belief. From the reading of the aforementioned affidavit of para numbers 1 to 6, it can be seen that, there is only narration of facts which are already on record.
But para 7 states that the deponent has "for good and sufficient reasons, extremely preoccupied with sensitive cases being dealt with by him and where there is pending of an ongoing litigation up to the Hon'ble Supreme Court having substantial revenue implication, andhe was unable to move the cross objection within the time under section 253(4) of the Act." Though the deponent has verified that all the paras are true to the best of his knowledge and belief, however, the averments made in Para 7 do not contain any precise statement of fact or the exact nature of his involvement which can lead to a belief that deponent was unable to carry out his statutory obligation. Such a belief of statement of fact has to be specific and 10 not on some vague assertion. Nowhere it has been mentioned or brought on record as to in which cases deponent was preoccupied before Hon'ble Supreme Court and the nature of his involvement. Here the deponent himself has made an assertion that he had 'good and sufficient reason' and proclaimed to be preoccupied without stating as to the nature of his engagement and his preoccupation. Another very important aspect of an affidavit to be admissible is the verification given on an affidavit which is a very crucial to test the genuineness and authenticity of the averments made by the deponent and whenever called upon, the court can find it safe to act on such an affidavit. Here the averment is not based on personal knowledge, albeit is based on certain fact of deponent's involvement in other matters which precluded him from statutory obligation. The fact stated is based on certain information with the deponent but the source of information has not been disclosed. Nothing has been brought on record before us to prove the authenticity and the genuineness of the facts deposed in Para 7 of the purported affidavit.
5.2 Another fallacy which is notable in the aforesaid affidavit is that, there is no identification of the deponent by a duly authorised person. The person making an affidavit has to be identified by the Court, or Magistrate, or Officer of court, or a Notary who has been authorised under the 'Notaries Act'; and at the foot of the affidavit the name and description of the person by whom identification is made as well as time and place of identification has to be 11 categorically mentioned. Here in this case there is a seal of a Notary, "Mr. Azad Kumar, Advocate" who has simply mentioned "attested" and date has been marked as 12th April, 2016. There is no identification of the deponent by the notary as to on what basis he has identified the deponent. There is no certificate indicating, for example, that the above was declared on----------before me this------ day---------at--------(place of)-----------by------------who is--------------. This is important to ascertain as to how the person making the affidavit has been identified, like "personally known to me" or "identified at (time and place of identification) by (full name and description of person making the identification who is personally known to me). Such an identification by the authorised officer is an important limb of the affidavit which is lacking in this case.
5.3 Another very important aspect as pointed out by the ld. senior counsel is that, there is no administration of oath or affirmation by the notary. It is incumbent that the affirmation of oath has to be certified by the person administrating the oath stating the contents which have been deposed before him, date and place. This is the mandatory requirement as per section 139 of CPC which reads as under.
"139. Oath on affidavit by whom to be administered - In the case of any affidavit under this Code -
(a) Any Court or Magistrate, or (aa) any notary appointed under the Notaries Act, 1952 (53 of 1952); or) 12
(b) Any officer or other person whom a High Court may appoint in this behalf, or
(c) Any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf, May administer the oath to the deponent.
Thus, in the affidavit the aforementioned authorities has to administer the oath of the deponent by the person who is authorized to do so in. If the affidavit has been made without administering oath or the confirmation, the same cannot be reckoned as an affidavit in the eyes of law and hence inadmissible in any proceedings.
5.4 Thus, in our opinion the so-called affidavit dated 12.4.2016 cannot be held to a valid affidavit under the eyes of law and hence, the contents stated therein cannot be held to admissible or acceptable. We disapprove such perfunctory and casual approach in filling of affidavit in-consistent with the provisions of law especially from high level government authority. If the Ld.DCIT was not aware of the provisions of law or the manner in which an affidavit should be made, he should have at least taken some legal opinion before filing an affidavit or affixing his signature on a document which is to be filed before the Court, because an affidavit is a vital piece of evidence on the basis of which the Courts proceed to decide a fact in dispute. Such a callous attitude should be 13 avoided and more responsibility should be shown by such high ranking officers while filling such kind of documents.
6. In any case the reasons given for condonation of delay cannot be held to be sufficient and reasonable cause for condonation of delay because it is too vague and general. A high ranking Government officer discharging public duty is always preoccupied with some important work or other. It does not mean dereliction of other statutory and governmental duties. If ld. DCIT was actually preoccupied in some very important assignment, then he has to clearly specify as to what was the nature of such preoccupation that it was impossible for him to take steps for filing of the Cross Objection in time. Merely mentioning that he was preoccupied with some sensitive case before the Hon'ble Supreme Court without specifying the nature of the case and whether during that period he was unable to perform/discharge his other functions/duties, we are unable to accept such kind of extremely vague reasons. The Hon'ble Supreme Court in the case of Post Master General and Others vs. Living Media India Ltd. and another (2012)3 SC 563 came down heavily on the government bodies and agencies in filing belated appeals due to bureaucratic red-tapism and vague approach of the government authorities in the matter of condonation of delay in filing the appeals. Their Lordships held that the Law of Limitation undoubtedly binds everybody, including the government. It was further observed as under:-
"29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence 14 and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."
7. Thus, we are unable to accept the reasons as given by the DCIT in filing the Cross Objection within time limit u/s 253(4) of the Act and accordingly, the Cross Objection filed by the Revenue stands dismissed in-limini being barred by limitation.
8. In the result the Cross Objection filed by the Revenue is dismissed.
Order pronounced in the Open Court on 23rd March, 2017.
Sd/- Sd/-
(J.SUDHAKAR REDDY) (AMIT SHUKLA)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: the 23rd March, 2017
· Manga
15
Copy forwarded to: -
1. Appellant
2. Respondent
3. CIT
4. CIT(A)
5. DR, ITAT
- TRUE COPY -
By Order,
Asst. Registrar