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Income Tax Appellate Tribunal, ‘D’ BENCH: CHENNAI
Before: SHRI GEORGE MATHAN & SHRI INTURI RAMA RAO
आदेश / O R D E R
PER GEORGE MATHAN, JUDICIAL MEMBER:
This is an appeal filed by the Revenue against the Order of the Commissioner of Income Tax (Appeals)-6, Chennai, in ITA No.25/C.I.T(A)- 6/2010-11 dated 20.09.2017 for the assessment year 2008-09.
Mr.M.S.Nethrapal represented on behalf of the Revenue and Mr.S.Sridhar represented on behalf of the assessee.
The appeal filed by the Revenue is delayed by three days. The Revenue has not filed Affidavit in its proper form. The Revenue had been asked to file the affidavit in Stamp Paper, but the affidavit has been filed by Shri R.Bhoopathi, Deputy the Commissioner of Income Tax, Corporate Range-2(2), Chennai-34 on a plain paper.
An Affidavit is a declaration of facts made in writing and sworn before a person having the authority to administer oath. All Affidavits are verified statements and printed on Stamp Papers of different denominations. According to the Indian Laws, an Affidavit can be used to prove a fact in a court of law provided the Court orders it.
4.1 Further, Rule-10 of the Income Tax Appellate Tribunal Rules, 1963 provides for filing of Affidavits wherein it is specifically mentioned that:
“Where a fact which cannot be borne out by, or is contrary to, the record is alleged, it shall be stated clearly and concisely and supported by a duly sworn affidavit.”
4.2 Moreover, since affidavits are not included in the definition of “Evidence” in the Indian Evidence Act, they can be used as evidence only when the court finds it reasonable to invoke the provisions of order-19 of the Civil Procedure Code. This provision is however, subject to the right of the opposite party to produce the deponent for cross verification.
4.3 Furthermore, Affidavit on Stamp Papers are on “Non Judicial Stamp Paper”, which are ADMINISTERED on oath before a Notary appointed by the State Government, and stamp duty are paid as per Stamp Act. The second category of affidavits, which are ADMINISTERED on oath before oath Commissioner, who are appointed by the High Court, and it is written on plain paper and stamp duty are exempted by the Stamp Act, and if duty is imposed for stamp duty in Affidavits to be used in the court in judicial functions adhesive court fees are paid.
In the present case, the affidavit filed by Shri R.Bhoopathi is on a plain paper neither Notarized, nor ADMINISTERED on oath, nor the necessary adhesive court fees are paid. This being so, the affidavit filed is neither an affidavit for the purpose of condoning the delay nor is an affidavit as per the requirements for the purpose under Rule-10 of the Income Tax Appellate Tribunal Rules, 1963. Effectively what has been done is that under the guise of an affidavit, the Officer has only filed a letter seeking condonation of delay, which is not permissible under any of the provisions of the law, nor Rule-10 of the Income Tax Appellate TribunaL Rules, 1963. Consequently, the appeal filed by the Revenue stands dismissed for defects uncured by applying the principles laid down by the Hon’ble Jurisdictional High Court in the case of Prasad Productions P. Ltd. Vs. Income-Tax Appellate Tribunal [1997] 226 ITR 778 (Mad).
In the result, the appeal of Revenue stands dismissed for defects uncured.
This Order, however, does not preclude the Revenue from filing a fresh appeal in accordance with law.
Order pronounced in the open Court after conclusion of hearing on the 20th August, 2019 in Chennai.