SUDHIR AGARWAL, J. - (1.) SINCE , both the matters involve similar questions of law and, therefore, have been heard together and are being decided by this common judgment. Heard Sri R.N. Singh. Senior Advocate, assisted by Sri R.K. Rai, and Sri Madhur Prasad. Advocate for the appellants and Sri R.K. Upadhyay for the respondents.
(2.) I .T.A. No. 14 of 2008 (hereinafter referred to as the 'first case') has been filed under Section 260(A) of the Income Tax Act, 1961 (hereinafter referred to as the 'Act') against the order dated 13.11.2007 passed by the Income Tax Appellant Tribunal (hereinafter referred to as the Tribunal') in Income Tax Appeal No. 17 (Alld) of 2007. I.T.A. No. 476 of 2007 (hereinafter referred to as 'second case') is against the order dated 13.4.2007 of the Tribunal passed in several connected appeals of the appellants. The first submission of Sri Singh the learned Counsel for the appellant in the first case is that the appeal filed before Tribunal was barred by time. This objection was raised by him before the Tribunal also but the same has not been adverted to by it. Elaborating his submission, it is contended that the copy of the order dated 3.10.2006 of Commissioner of Income Tax (Appeal) [in short 'CIT(A)] was received by the Assessing Authority before 14.11.2006 inasmuch on 14.11.2006 the Income Tax Officer, pursuant to the order dated 3.10.2006, issued revised demand and. therefore, the appeal filed on 12.1.2007 was barred by limitation as prescribed under Section 253(3) of the Act. However, we do not find any substance in the submission. A perusal of the Section 253(3) shows that the period of limitation Commences from the date the order is communicated to the assessee or the Commissioner as the case may be. Therefore, the period of limitation prescribed under Sub -section 3 of Section 253 of the Act would commence from the date the order is communicated to the Commissioner, Income Tax. In the present case, the respondents have stated that the order was communicated to the Commissioner, Income Tax on 17.11.2006. The same was mentioned not only in the memo of appeal filed before the Tribunal but even in the counter affidavit filed by the respondents before this Court. It is specifically stated in para -6 that the order dated 3.10.2006 was received by C.I.T. on 17.11.2006 and, therefore, the appeal was well within time. This fact has not been disputed by the appellant. The appellant has sought to compute the period of limitation erroneously, i.e., from the date of communication of the order to Assessing Authority, though it would commence from the date of communication to the Commissioner. It, thus, cannot be said that the appeal preferred by the respondents was beyond time.
(3.) THE next submission in the first case is that once the order of CIT (A) was acted upon by the Assessing Authority by issuing a revised demand on 14.11.2006 and was accepted by the assessee, since he deposited the amount of Rs. 19,850/ - by Challan dated 23.11.2006, thereafter, it was not open to the respondents to take a different view in the matter and challenge the order of CIT (A) before the Tribunal by filing an appeal under Section 253. This submission also, in our view, is wholly unmerited and misconceived. The right of appeal under Section 253 has been conferred upon the assessee and the Commissioner, Income Tax. Where the Commissioner is aggrieved by the order passed by the CIT (A), he can direct the concerned Assessing Authority to file an appeal and in other matters, it is the assessee, who can file appeal, if he is aggrieved by the order of the CIT (A). It is not the case that the Commissioner took any decision of not filing any appeal against the order dated 3.10.2006 passed by the CIT (A). In fact, till the alleged revised demand was issued by Assessing Officer on 14.11.2006, even the copy of the order dated 3.10.2006 was not communicated to the Commissioner, which in fact was received by him on 17.11.2006. A statutory right of appeal vested in Commissioner cannot be made non est merely on the ground that the order against which the appeal was filed was complied with by the subordinate authority. Even in the judicial orders, when an appeal is filed and no interim order is passed, if the order passed by the Lower Court is executed, it would not make the appeal incompetent or infructuous. The right of appeal is one thing and compliance of the order against which the appeal is filed is another thing. The Commissioner by no principle of law can be restrained or deprived of exercising his right of appeal under Section 253(2) of the Act. The aforesaid contention of the appellant is thus rejected being without any substance.;