ESHA MEDIA RESEARCH LIMITED,HYDERABAD V. INCOME TAX OFFICER, WARD-17(1), HYDERABAD

MA 65/HYD/2024

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Esha Media Research Ltd filed Miscellaneous Applications seeking to recall an order dated 7/6/2021, which allowed the withdrawal of their appeals related to the assessment years 2012-13 and 2013-14. The withdrawal was initially permitted because the assessee opted for the Vivad-se-Vishwas Scheme, 2020, to settle their tax disputes. However, the assessee later decided not to pursue the scheme due to discrepancies in the tax amounts calculated by them and the Department. The Tribunal's earlier order allowed the assessee to approach the Tribunal for reinstatement of the appeals if their application under the scheme was rejected. The assessee's applications were dismissed due to an inordinate delay in filing, with the Tribunal finding no sufficient cause for such delay.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 27174 (ITAT-HYDERABAD)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-02-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-B
• Assessment Year: 2012-2013
• Other Referred Cases: Mahesh Goud Voruganti vs. Income Tax Officer
• Laws Referred To: DTVSV Act, 2020, I.T. Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: M.V. SHAH
• Keywords: Condonation of delay; Set aside; Reasonable cause; Bonafide belief; Period of limitation; Rectification of order
• Section: 254(2); 13

Judgement Text

" MA Nos 65 and 66 of 2024 Esha Media Research Ltd Page 1 of 15 आयकर अपीलȣय अͬधकरण, हैदराबाद पीठ IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘ B ‘ Bench, Hyderabad Before Shri Vijay Pal Rao, Vice-President A N D Shri Madhusudan Sawdia, Accountant Member M.A Nos.65 & 66/Hyd/2024 (आ.अपी.सं /ITA Nos.28 & 29/Hyd/2020) (िनधाŊरण वषŊ/Assessment Years: 2012-13 & 2013-14) Esha Media Research Ltd Hyderabad PAN:AAACL6230C Vs. Income Tax Officer Ward 17(1) Hyderabad (Appellant) (Respondent) िनधाŊįरती Ȫारा/Assessee by: Shri M.V. Shah, CA राज̾ व Ȫारा/Revenue by:: Dr. Sachin Kumar, DR सुनवाई की तारीख/Date of hearing: 24/01/2025 घोषणा की तारीख/Pronouncement: 20/02/2025 आदेश/ORDER Per Vijay Pal Rao, Vice President By way of these M.As, the assessee is seeking recall of the composite orders, dated 7/6/2021 passed by this Tribunal in ITA Nos. 28 & 29/Hyd/2020 whereby the assessee was allowed to withdraw the appeals in view of the fact that, the assessee opted for Vivad-se-Vishwas Scheme, 2020. In the Miscellaneous Applications, the assessee stated that while opting for Vivad-se- Vishwas Scheme, 2020 to settle the tax dispute for these 2 years, MA Nos 65 and 66 of 2024 Esha Media Research Ltd Page 2 of 15 the assessee computed the tax payable at Rs.61,10,554/- and Rs.27,94,829/- for the A.Ys 2012-13 & 2013-14 respectively. However, in Form-3, the amount payable was determined at Rs.71,02,091/-and Rs.34,51,615/- respectively and consequently, the assessee did not pursue the declaration made under Vivad-se-Vishwas Scheme, 2020 which stands rejected. Thereafter, the assessee realized that the outstanding demand for the A.Ys 2012-13 & 2013-14 were sought to be adjusted by the Department against the refund for the A.Y 2024-25 and thus, the assessee has filed these M.As for recalling of the order of this Tribunal dated, 7/6/2021 and restoring the appeals of the assessee for adjudication on merits. Since there is a delay in filing the M.As whereby the assessee is seeking recalling of the earlier order dated 7/6/2021, therefore, the learned Counsel for the assessee was asked to explain on the points of delay and maintainability of the M.As filed belatedly. 2. The learned AR of the assessee has submitted that while passing the order dated 7/6/2021, this Tribunal allowed the assessee to withdraw the appeals and consequently, the appeals were dismissed as withdrawn, with a liberty to the assessee to approach the Tribunal for revival of the appeal, in case the application with respect to Vivad-se-Vishwas Scheme, 2020 are rejected. Thus, the learned AR has contended that the assessee was given liberty to approach the Tribunal to reinstate the appeals, in case its application under Vivad-se-Vishwas MA Nos 65 and 66 of 2024 Esha Media Research Ltd Page 3 of 15 Scheme, 2020 does not materialize. The learned AR has invited our attention to section 4(2) of D.T.V.V.S Act, 2020 and submitted that it provides that, upon filing the declaration in Form-1 and Form-2, the appeal of the assessee pending before the ITAT or the learned CIT (A) shall be deemed to be withdrawn from the date of issuance of certificate in Form-3. Thus, the appeal of the assessee/applicant was deemed as withdrawn pursuant to section 4(2) of the DTVSV Act, 2020. However, in view of the higher amount determined by the Department in comparison to the tax liability computed by the assessee/applicant, it did not pursue the declaration/application for settlement of disputes under Vivad-se-Vishwas Scheme, 2020. Because the assessee failed to make the payment of the tax calculated by the designated authority in Form No.3 within the prescribed time limit, the consequence was that, its application in Form Nos.1 & 2 became void and will be deemed to have never been made and litigation would revive. Thus, the learned AR has submitted that as per section 4(2) of DT VSV 2020, the original appeals of the assessee got revived. The learned AR further submitted that the limitation provided u/s 254(2) is not applicable in the case of the assessee, as there is no mistake or error apparent from record of the original order and therefore, the applications are for revival of the appeals, pursuant to the provisions of section 4(6) DT VVS Act, 2020 which provides automatic revival of the original appeals in the event of the declaration made under DTVVS Act, 2020 became void for non-payment of tax. In support of his contention, he has MA Nos 65 and 66 of 2024 Esha Media Research Ltd Page 4 of 15 relied upon the decision of the Hon'ble jurisdictional High Court in the case of Mahesh Goud Voruganti vs. Income Tax Officer reported in (2024) 158 Taxmann.com 286 and submitted that in identical facts and circumstances, when the Miscellaneous Application filed by the assessee was dismissed by this Tribunal being barred by limitation provided u/s 254(2) of the I.T. Act, 1961, the Hon'ble High Court has set aside the order of the Tribunal and the appeal of the assessee has been restored with a direction to the Tribunal to dispose of the appeal expeditiously as possible in accordance with law. 3. On the other hand, the learned DR has submitted that there is an inordinate delay in filing the Miscellaneous Applications on behalf of the assessee and the assessee has given no reason to explain the inordinate delay in filing the applications. Therefore, the Miscellaneous Applications are not maintainable due to delay and latches on the part of the assessee. 4. We have considered the rival submissions as well as relevant material on record. This Tribunal vide order dated 7/6/2021 has recorded the request of the assessee and then allowed the assessee to withdraw the appeals in Para 2 to 4 as under: “2. At the outset, the learned Authorized Representatives of the respective assessees submitted that the assessee do not want to pursue the appeals as they have already filed forms I & II under the “Direct Tax Vivad Se Viswas Scheme, 2020” and yet to receive Form 3 from the Department. Therefore, consequent to the same, the assessees desires to withdraw MA Nos 65 and 66 of 2024 Esha Media Research Ltd Page 5 of 15 the appeals before the Tribunal. Hence it was pleaded that the appeals of the assessees may be treated as withdrawn. 3. The learned DR conceded to the request of the learned ARs. 4. After hearing both the parties, according to the request of the assessees and their learned ARs, we hereby allow the appeals of the assessees to be withdrawn. We also make it clear that the assessees shall be at liberty to approach the Tribunal within the stipulated time as provided under the Act, in order to reinstate the appeals, if their applications with respect to Vivad Se Vishwas Scheme are rejected”. 5. Thus, it is clear that the assessee opted for Vivad Se Vishwas Scheme, 2020 to settle the tax disputes in the appeals for the A.Ys 2012-13 & 2013-14 and consequently sought permission to withdraw the appeals filed before the Tribunal. The Tribunal, vide order dated 7/6/2021 allowed the assessee to withdraw the appeals and consequently dismissed the appeals of the assessee as withdrawn with a liberty to the assessee to approach the Tribunal for reinstatement of the appeals in case the declaration made to settle the disputes under Vivad Se Vishwas Scheme are rejected. Form No.3 was issued by the designated authority on 15/04/2021 and 13/04/2021, but the assessee decided not to pay the tax amount determined by the designated authority under VSVS 2020. Thus, it is clear that in the month of April, 2021, the assessee decided not to go ahead with the settlement of disputes under VSVS 2020 and consequently, the demand of tax for the A.Ys 2012-13 & 2013-14 remained outstanding. The assessee has filed these 2 Miscellaneous Applications on 30/12/2024 for recalling of the earlier order MA Nos 65 and 66 of 2024 Esha Media Research Ltd Page 6 of 15 dated 7/6/2021 and revival of the appeals after more than 3 years or 1300 days from the date of the order of the Tribunal. Thus, there is an inordinate delay and latches in filing these 2 Miscellaneous Applications by the assessee without even filing any application for condonation of delay to explain a reasonable/sufficient cause for such delay. The assessee has simply relied upon the provisions of DTVSVS Act 2020 and, particularly section 4(2) as well as sec4(6) of the said Act and submitted that once the declaration under VSVS Scheme 2020 becomes void and deemed as never to have been made, the appeals of the assessee would automatically get revived. We do not agree with this contention of the assessee due to the reason that proceedings in the case were not pending before the tax authorities but the appeals were pending before this Tribunal and the appeals were dismissed as withdrawn by the order of this Tribunal. Therefore, the rejection of the application for settlement of dispute under VSVS 2020 would not automatically restore the appeals of the assessee until and unless the same is brought to the notice of the Tribunal by the affected party. Though the provisions of DT VSVS Act, 2020 provides a right to the assessee to get the proceedings revived, but until and unless the assessee brings this development of rejection of the declaration under VSVS 2020 to the notice of the Tribunal, it will not have an effect of automatic revival of the appeals. The learned AR has relied upon the judgement of the Hon'ble High Court in case of Mahesh MA Nos 65 and 66 of 2024 Esha Media Research Ltd Page 7 of 15 Goud Voruganti vs. Income Tax Officer (Supra) wherein the Hon'ble High Court has held in paras 14 to 17 as under: “14. Admittedly, the Tribunal vide order dated 20-1-2021 granted liberty to the petitioner herein to approach the Tribunal to reinstate the appeal in case application submitted by the petitioner under DTVSV scheme is rejected. It is pertinent to note that the Tribunal had referred to section 254(2) of the Act while dismissing M.A.No.52/Hyd/20223, construing the time limit as six months as stipulated under section 254(2) of the Act. Section 254(2) of the Act stipulates that an application to rectification has to be filed within a period of six months from the date of order. Section 254(2) is reproduced hereunder for ready reference. \"S.254. Orders of Appellate Tribunal.— (*1)************** *************** (2) The Appellate Tribunal may, at any time within2[six months from the end of the month in which the order was passed], with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard: Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.\" 15. In considered opinion of this Bench, section 254(2) of the Act has no application to the petition filed by the petitioner, which was filed for revival of the appeal. Therefore, rectification of an order and revival of an appeal are different and cannot be equated. Though there is delay on the part of the petitioner in approaching the Tribunal, in the considered view of this bench, the petitioner should be afforded an opportunity to pursue his appeal, to meet the ends of justice or else he would be rendered remedyless. MA Nos 65 and 66 of 2024 Esha Media Research Ltd Page 8 of 15 16. Since the application under section 254(2) itself was not maintainable, using the inherent powers with the Tribunal, they should have treated the application under section 254 (2) as one seeking revival of the appeal, in the light of the earlier order of the Tribunal dated 20-1-2021. 17. In the above factual matrix, the order dated 11-7-2023 passed by the Tribunal is set aside and consequently, the application under section 254(2) is ordered to be treated as an application for revival of the appeal. The Appeal vide I.TA.No.32/Hyd/2020 is restored and the Appellate Tribunal is directed to dispose of the appeal as expeditiously as possible in accordance with law on its own merits.” 6. In the said case, the Tribunal dismissed the Miscellaneous Application by treating the same as filed u/s 254(2) of the I.T. Act, 1961 and consequently, held as not maintainable being barred by limitation as provided u/s 254(2) of the Act. The Hon'ble High Court has held that the application filed by the assessee for revival of the appeal would not be treated as an application for rectification of mistake u/s 254(2) of the Act and therefore, the limitation provided u/s 254(2) would not be applicable. Thus, even if the application filed by the assessee is not for rectification of the mistake in the order of this Tribunal dated 7/6/2021 and the same may be treated u/s 254(1) of the Act for exercising the inherent power to recall its order to meet the end of justice, the assessee cannot be allowed to wait for an indefinite period before approaching the Tribunal for recalling of the order. Therefore, even if the limitation of 6 months as provided u/s 254(2) of the I.T. Act, 1961 is not applicable in the case of recalling of the order dated 7/6/2021, the applications ought to MA Nos 65 and 66 of 2024 Esha Media Research Ltd Page 9 of 15 have been filed within a reasonable period and the delay in filing the application must have been explained to the satisfaction of the Tribunal. The question arises if limitation of 6 months provided u/s 254(2) is not applicable, then the limitation provided in the general statute i.e. Limitation Act would be applicable for filing of the applications. It is a settled proposition of law that so far as the limitation is provided under the special statute the applicability of the general statute is excluded, however, where the limitation for a particular action is not provided in the special statute, then the provision of general statute are applicable. Accordingly, if the applications filed by the assessee are treated u/s 254(1) of the Act, then the limitation for approaching this Tribunal for exercising inherent power to recall its earlier order would be applicable as provided under the Limitation Act. The limitation Act provides the limitation for the specific purposes and also provides the provision for condonation of delay, if any, in filing the application beyond the period of limitation. Such provisions of condonation of delay is provided u/s 5 of the Limitation Act. As per Article 137 of the Limitation Act, if limitation is not provided for any specific application, then the residuary limitation of 3 years is applicable. 7. In case in hand, the assessee has filed these Miscellaneous Applications after more than 3 years and the assessee has not even filed any application for condonation of delay or explained any reasonable, much less sufficient cause for MA Nos 65 and 66 of 2024 Esha Media Research Ltd Page 10 of 15 such an inordinate delay in filing these applications. The only reason stated by the assessee is that while filing the return of income for the A.Y 2024-25, the assessee received a notice u/s 245 of the Act, regarding adjustment of the refund against the demands for the A.Ys 2012-13 & 2013-14 and then the assessee has filed these applications for revival of the appeals already withdrawn vide order dated 7/6/2021. Section 2(j) of the Limitation Act, 1963 defines the period of limitation as under: “Section (2)…………… (a) xxxxxxxx xxxxx xxxx (j) period of limitation” means the period of limitation prescribed for any suit, appeal or application by the Schedule, and “prescribed period” means the period of limitation computed in accordance with the provisions of this Act; ” 8. Thus, the period of limitation for any suit, appeal or application is provided in the schedule of period of limitation and computed in accordance with the provisions of the Limitation Act. As per Article 122 of the schedule of limitation, the period of limitation for filing an application to restore the suit, appeal or application for review or revision is 30 days computed from the date of dismissal of the suit, appeal or application. Though section (5) of the Limitation Act provides that an appeal or application may be admitted after the prescribed period, if the appellant or applicant satisfies the Court that he had sufficient MA Nos 65 and 66 of 2024 Esha Media Research Ltd Page 11 of 15 cause for not preferring the appeal or making the application within such period. Since the application in the case of the assessee is not for restoration of the appeal dismissed for default of appellant therefore, the period of limitation as provided under Article 137 which covers all other applications may be considered being residual provision prescribes the limitation as 3 years which is otherwise provided under the limitation Act for filing the suits falling in the first division of the schedule for that there is no provision even in the Limitation Act for condonation of delay. However, even if the limitation as provided under Article 137 of schedule of limitation is taken as 3 years for filing the application for restoration of the appeal earlier dismissed as withdrawn, then the delay in filing the application after the said period of 3 years is required to be explained with sufficient cause to the satisfaction of this Tribunal. 9. In the present case, the appeals of the assessee were dismissed as withdrawn by this Tribunal vide order dated 7/6/2021 and the declaration/application under DTVSV Act, 2020 was also stood rejected in the month of April, 2021 itself when the assessee did not making the payments of the amounts determined as per the certificate issued in Form-3 of the DTVSV Act 2020 and consciously allowed the application/declaration under VSVS Act 2020 to be rejected/deemed to have never been made as per section 6 of the DTVSV Act 2020. Even otherwise, the assessee has accepted this fact that it has taken a conscious MA Nos 65 and 66 of 2024 Esha Media Research Ltd Page 12 of 15 decision for not make the payment of the amount of tax determined in Form-3. Therefore, the limitation of 3 years as prescribed under Article 137 of the schedule of limitation as per the Limitation Act would reckon from the date of the impugned order i.e. 7/6/2021 as this is later than the rejection/closure of the application filed by the assessee under the VSVS Act, 2020. The present Miscellaneous Applications have been filed on 30/12/2024 are beyond the period of 3 years as limitation prescribed under Article 137 of schedule of limitation for which the assessee was required to explain a sufficient cause. As we have already taken note of the fact that the assessee has not even filed any application for condonation of delay and the only reason which is explained by the assessee in para 8 to 11 of the Miscellaneous Application is as under: MA Nos 65 and 66 of 2024 Esha Media Research Ltd Page 13 of 15 10. Thus, the assessee has explained that it was under Bonafide belief that its appeal was restored as DTVSV application did not materialize and thus, failed to file the present application in time. It is pertinent to note that in the impugned order itself, the Tribunal has made it clear that the assessee shall be at liberty to approach the Tribunal within the stipulated time as provided under the Act in order to reinstate the appeal, if the application with respect to the VSVS 2020 are rejected. Therefore, there was no scope of any misunderstanding or ambiguity about the restoration of the appeals when the Tribunal has made it clear that the assessee was to approach the Tribunal. In any case, when the appeals of the assessee were dismissed by the order of this Tribunal, then in the absence of bringing this fact of non- materializing of application under VSVS 2020, the appeals of the assessee would not get restored automatically. The assessee is a company having all the requisite professional, advice and services and therefore, cannot take a plea that the delay in filing the application was due to Bonafide belief or inadvertent mistake. The said plea taken by the assessee having regard to the facts and circumstances of the case would not constitute sufficient cause for explaining the delay in filing the applications. 11. There is no quarrel on the point that the expression “sufficient cause” must be construed liberally in favour of the litigant approached the Court belatedly so that the dispute could be decided as far as possible on merits and not on technicalities. MA Nos 65 and 66 of 2024 Esha Media Research Ltd Page 14 of 15 However, at the same time, the litigant is not allowed to use the process of law to achieve an ulterior purpose in under hand way by approaching the Court belatedly. Therefore, the concept of liberal interpretation of expression “sufficient cause” would not obliterate the requirement of some reasonable cause to justify the delay. The apparent unacceptable and unsatisfactory reasons cannot be accepted when the Court finds absolutely no justification for the inordinate delay in filing the applications. It is pertinent to note that the explanation for the delay must be non- discretionary on the part of the defaulter. In other words, the delay must be caused by the circumstances beyond the control of the litigant. The applicant before us has waited for more than 3 years to file these Miscellaneous Applications and has failed to show that it has acted bonafidely and has taken all possible steps within its power and control to file the applications without unnecessary delay. The assessee has rather contended that the appeals of the assessee got automatically restored in view of the provisions of DTVSV Act, 2020 which in our considered view, is not a righty claim of the assessee and only provides an opportunity to the assessee to get the proceedings revived particularly when the proceedings were not pending with the Department but were pending before this Tribunal. The applicant/assessee has failed to bring any material to show that it was prevented by some circumstances or events which were beyond the control of it to file the application within the period of limitation or within a reasonable period. The case of the assessee MA Nos 65 and 66 of 2024 Esha Media Research Ltd Page 15 of 15 falls in the category of delay and latches in filing these applications and the explanation of the assessee for such delay is nothing but a device to achieve ulterior purpose and an attempt to save the limitation in under hand way. Accordingly, in the facts and circumstances, as discussed above, we are of the considered opinion that the assessee has failed to explain a reasonable cause, much less a sufficient cause, for the delay in filing these Miscellaneous Applications and hence we decline to condone the delay in filing the present applications. Consequently, the Miscellaneous Applications of the assessee are held to be barred by limitation and liable to be dismissed. We order accordingly. 12. In the result, Miscellaneous Applications filed by the assessee are dismissed being barred by limitation. Order pronounced in the Open Court on 20th February, 2025. Sd/- Sd/- (MADHUSUDAN SAWDIA) ACCOUNTANT MEMBER (VIJAY PAL RAO) VICE-PRESIDENT Hyderabad, dated 20th February 2025 Vinodan/sps Copy to: S.No Addresses 1 Esha Media Research Ltd, 3-4-480/3 V V Sangh Building, Barkatpura Hyderabad 500027 2 Income Tax Officer Ward 17(1) Hyderabad 3 Pr. CIT - Hyderabad 4 DR, ITAT Hyderabad Benches 5 Guard File By Order "