Himachal Futuristic Communications Ltd. vs Commissioner of Income Tax

V.K. Gupta C. J.

An order dated January 28, 2003, passed by the Income Tax Appellate Tribunal, Chandigarh Bench "B", in I.T.A. Nos. 626 and 627 Chandigarh of 1997, assessment years 1992-93 and 1993-94, was chal-lenged before the Delhi High Court by filing an appeal u/s 260A of the Income Tax Act, 1961, being I.T.A. No. 242 of 2003. When I.T.A. No. 242 of 2003 came up for consideration on July 23, 2003, a Division Bench of the Delhi High Court by referring to the submissions made by learned counsel for the appellant that the Delhi High Court did not have territorial jurisdiction to deal with the appeal and as prayed for by counsel for the appellant that the appeal be returned to the appellant for being presented to a court of competent jurisdiction, passed an order (in view of the aforesaid submissions), that the paper book be returned to counsel for the appellant for being presented in the Himachal Pradesh High Court.

Apparently acting in compliance with the aforesaid order passed by the Delhi High Court on July 23, 2003, in I.T.A. No. 242 of 2003 the appellant filed in this court the original memo of appeal as was presented in the Delhi High Court and as apparently was returned to the appellant. No appeal as such has been filed in this court. What the appellant has filed in this court is the original memo of appeal which the appellant had filed in the Delhi High Court and which was returned to the appellant.

We entertained a very serious doubt as to whether it was at all permissible for the appellant to have filed the memo of appeal as was filed in the Delhi High Court in this court and would the filing of the said memo of appeal amount to, and constitute the filing of an appeal in this court u/s 260A of the Income Tax Act. With a view to help us in removing that doubt, learned counsel for the appellant referred to sub-section (7) of section 260A of the Income Tax Act and submitted that as per this provision, the CPC would apply to the appeals filed u/s 260A of the Income Tax Act and, therefore, it was permissible for the appellant to have adopted the aforesaid course of action. Sub-section (7) of section 260A of Income Tax Act reads thus :

"Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section."

What is abundantly clear by a bare reading of sub-section (7) is that the provisions of the CPC "relating to appeals to the High Court" alone have been made applicable to the appeals filed u/s 260A (supra).

In the entire Code of Civil Procedure, the only provision relating to the "return" is the one for the "return of a plaint" under Order 7, Rule 10. Order 7, Rule 10, of the CPC reads thus :

"10. Return of plaint. -- (1) Subject to the provisions of Rule 10A, the plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted.

Explanation. -- For the removal of doubts, it is hereby declared that a court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plant under this sub-rule . . ."

Neither Order 41 nor Order 42, nor for that matter Order 43 of the CPC contain any provision for the return of a memo of appeal. The Explanation to Order 7, Rule 10 of the Civil Procedure Code, clearly suggests that even a court of appeal or for that matter a revisional court may direct for the return of the plaint only after the decree passed in a suit and under challenge before it, has been set aside by the appellate court or the revisional court. Order 7, Rule 10, therefore, applies only to the return of a plaint and this provision cannot be stretched to apply to the return of a memo of appeal. Nothing to the contrary contained in any provision of law was brought to our notice by learned counsel for the appellant.

The thrust and purport of making the aforesaid observations with respect to the return of the plaint and the provisions relating to the return of the plaint not being applicable to the return of a memo of appeal is only to highlight the fact that as far as this court is concerned, it was obligatory and incumbent upon the applicant-appellant to have filed a proper appeal in terms of section 260A of the Income Tax Act in a proper format as is applicable to this court (the appeal properly being addressed to this court), and that, therefore, the requirement of law would not be deemed to be satisfied by the appellant by merely handing over to this court the original memo of appeal as was filed by the appellant in the Delhi High Court and as was returned to the appellant. The purport of making the aforesaid observations is also not to comment upon the order passed by the Delhi High Court on July 23, 2003, at all. We are concerned only with the act of the appellant in filing a properly constituted appeal in this court and our considered view is that as far as this court is concerned, the appeal would be deemed to be properly filed only if a properly framed appeal, addressed to this court in the usual format is presented to this court and that requirement cannot be met by merely placing on record the memo of appeal as was filed in the Delhi High Court and as was returned to the appellant.

We, therefore, based on the aforesaid discussion hold that no properly constituted appeal has been filed in this court and the memo of appeal filed by the appellant in the Delhi High Court as has been filed by the appellant in this court on being returned to it cannot be a substitute and hence cannot be treated as an appeal filed in this court u/s 260A of the Income Tax Act. The so called appeal, therefore, filed by the appellant in this court under the circumstances mentioned above is dismissed. If the appellant desires, on an application that it may make for this purpose before the Registrar General of this court, it may be returned the aforesaid memo of appeal, by retaining a photo copy thereof on the record of this court. However, this order shall not prevent the appellant from filing a properly constituted appeal in this court, if so advised and if maintainable, along with an application for condonation of delay, if so advised.

Income Tax Application No. 1 of 2003 :

In view of the dismissal of the main appeal, the present application shall stand dismissed.