S.K. Keshote, J. - (1.) THE State of Rajasthan through Superintending Engineer, Irrigation Circle, Irrigation Department, Jaipur, filed this appeal under Section 260A of the Income-tax Act, 1961 (for short "the Act, 1961"), against the order dated January 18, 1999, of the Income-tax Appellate Tribunal, Jaipur Bench, Jaipur, passed in I. T. A. No. 2029/JP of 1992, for the assessment year 1990-91 and the order dated December 22, 1999, of the Tribunal in the Review Application No. 16/JP of 1999.
(2.) AS per the narration in the memo of appeal the facts of the case are that the appellant, Irrigation Department, Government of Rajasthan, mainly performing the duties and functions providing irrigation facilities and other infrastructure in the field of irrigation all over the State. A notice was served by respondent No. 2 to the appellant for the assessment year 1990-91 in regard to non-filing of annual TDS returns under Section 206 of the Act, 1961, in Form No. 24 of I. T. A. on reference made to it by the Income-tax Officer (TDS). Under the reference made by the Income-tax Officer (TDS) a proposal for the imposition of penalty under Section 272A(2) of the Act, 1961, was proposed. The contents of the notice are that the appellant has failed to submit annual TDS return in the prescribed Form No. 24 under Section 206 of the Act, 1961, thereby a delay of 460 days has taken place for the assessment year 1990-91 for which the due date was April 30, 1990. In response to that notice the appellant appeared before respondent No. 2. It filed detailed submissions. Respondent No. 2 decided the matter under its order dated January 17, 1992. The appellant was held guilty for non-filing of the TDS returns in limitation in the prescribed Form No. 24 under Section 206 of the Act and thereby imposed a penalty of Rs. 46,000. The appellant preferred an appeal against this order of respondent No. 2 before the Commissioner of Income-tax (Appeals), Rajasthan, Jaipur. It was registered as Appeal No. 1133 of 1991-92. The appeal came to be decided by the appellate authority and under its order dated October 26, 1992, the same was allowed and penalty imposed by respondent No. 2 was cancelled. Respondent No. 2 aggrieved by the order aforestated of the Commissioner of Income-tax (Appeals), Jaipur, filed appeal before respondent No. 1 which was registered as I. T. A. No. 2029/JP of 1992. The learned Tribunal decided the appeal on January 18, 1999. The same was allowed quashing and setting aside the order of the Commissioner of Income-tax (Appeals) and the order of respondent No. 2 was restored. The appellant filed a petition for review of the order dated January 18, 1999. The Tribunal dismissed the review petition on December 22, 1999. Hence, the appellant is before the court. The appeal is barred by ten days. The appellant filed an application under Section 5 of the Limitation Act for condonation of this delay. The appeal was placed for preliminary hearing on board on May 16, 2002. On that day notices of the application under Section 5 of the Limitation Act were issued to the respondents returnable within four weeks. Reply to this application of the appellant filed under Section 5 of the Limitation Act is filed by respondent No. 2. On September 9, 2002, it is noticed that by this appeal the appellant has challenged two different orders of the Tribunal, i.e., annexure 3 (dated January 18, 1999) and annexure 4 (dated December 22, 1999). Under the order dated January 18, 1999 (annexure 3), the Tribunal has decided the appeal. Vide its order dated December 22, 1999 (annexure 4), the Tribunal decided the review petition. The court held that the two orders cannot be challenged in one appeal. The appellant was directed to file separate appeal if he desires to challenge the order dated January 18, 1999 (annexure 3). The court has further directed the appellant to make necessary corrections in the appeal challenging the order dated December 22, 1999 (annexure 4). The appellant filed miscellaneous application for amendment/correction in appeal in compliance of the order dated October 21, 2002, aforestated. In this application, the prayer is made that the appeal may be treated against the order dated December 22, 1999 (anneuxre 4) only. Heard learned counsel for the parties on this application. The application is not opposed by learned counsel for the Revenue and rightly so as it is filed in compliance of the order of the court dated December 9, 2002. Accordingly, the application is allowed and the appeal is restricted only against the order dated December 22, 1999 (annexure 4). Endorsement of disposal of the application be made in red on the first page thereof.
(3.) HEARD learned counsel for the parties on the application filed by the appellant for condonation of delay. Having gone through the contents of the application we are satisfied that delay of ten days occurred in filing of the appeal is satisfactorily explained by the appellant. Otherwise also this application is not seriously opposed by counsel for the Revenue and rightly so. Respondent No. 2 is an officer of the Central Government and it is not expected of him to oppose this application and get the appeal of the assessee dismissed on this technical ground. Accordingly, the application of the appellant filed under Section 5 of the Limitation Act is allowed and the delay of ten days occurred in filing of the appeal is condoned. The application accordingly stands disposed of. An endorsement to this effect be recorded in red ink on the top of the application. Learned counsel for the appellant submitted that the Tribunal has not considered the corresponding amendments which have been brought in Section 278A of the Act, 1961, by the Finance (No. 2) Act, 1991, with effect from October 1, 1991. Learned counsel for the appellant urged that the Tribunal has also not considered the provisions of Sections 273A and 273B of the Act, 1961. Lastly it is contended that the total amount of tax to be deducted at source was not exceeding Rs. 4,000. The appellant being the State, respondent No. 2 instead of penalising it for this default of non-filing of annual TDS return in Form No. 24, in time by its officer, the matter would have been referred to the Chief Commissioner of Income-tax, Rajasthan, Jaipur, for waiver of the penalty. This could have been done even after the order dated January 17, 1992. Shri R.B. Mathur, per contra, submitted that the proviso which is inserted in Section 278A of the Act, 1961, by the Finance (No. 2) Act, 1991, is not applicable to the present case, i.e., the assessment year 1990-91. This provision has been brought into force with effect from October 1, 1991, and the default committed prior to this date is not covered. ;