RAJENDRA PRASAD JAIN, Ajmer V. ITO, Ajmer

ITA 128/JPR/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2070 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 06-06-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 06-02-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P P MEENA
• Assessee Lawyers: C M BIRLA
• Keywords: Opportunity of being heard; Condonation of delay

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ MA NO.128/JP/2017 (ARISING OUT OF ITA NO. 399 & 572/JP/13) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 M/S B. D. MUNDRA & SONS, PROP. OF MUNDRA TRACTORS, C-150, IPIA, KOTA CUKE VS. THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE-1, KOTA LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: AAAHB 7882 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ MA NO.129/JP/2017 (ARISING OUT OF ITA NO. 400/JP/13) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 M/S B. D. MUNDRA & SONS, PROP. OF MUNDRA TRACTORS, C-150, IPIA, KOTA CUKE VS. THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE-1, KOTA LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: AAAHB 7882 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI C.M. BIRLA (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI P. P. MEENA LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 19/01/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 12/02/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. M.A. NO. 128 & 129/JP/2017 M/S B. D. MUNDRA & SONS, KOTA VS. ACIT, KOTA 2 THESE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED AGAINST THE ORDER PASSED BY THE CO-ORDINATE BENCH IN ITA NO. 399& 572/JP/2013 AND 400/JP/2013 DATED 27.10.2016 FOR AY 2008-09 AND AY 2009-10. 2. ALONG WITH ITS MISC. APPLICATIONS, THE ASSESSEE HAS SUBMITTED ITS APPLICATION FOR CONDONATION OF DELAY IN FILING THESE MISCELLANEOUS APPLICATIONS STATING AS UNDER:- 1. THAT ORDER OF HONBLE ITAT WAS PASSED ON 27.10.2016. 2. THAT IN CONSONANCE TO PROVISIONS OF SECTION 254(2) APPLICATION FOR AMENDMENT OF THE ORDER WAS TO BE FILED ON OR BEFORE 30.04.2017 HOWEVER IT IS FILED ON 04.09.2017 I.E. LATE BY 4 MONTHS AND 4 DAYS. 3. THAT THIS MISTAKE HAS OCCURRED BECAUSE AMENDED SECTION 254(2) LOST SIGHT OF MY COUNSEL. 4. THAT IT IS THEREFORE PRAYED THAT DELAY OF 3 MONTHS AND 4 DAYS BE CONDONED. 3. THE PROVISIONS OF SECTION 254(2) UNDER WHICH THE PRESENT MISC. APPLICATIONS HAVE BEEN FILED READS AS UNDER: (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN 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 M.A. NO. 128 & 129/JP/2017 M/S B. D. MUNDRA & SONS, KOTA VS. ACIT, KOTA 3 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. 4. THE PROVISIONS OF SECTION 254(2) ARE VERY CLEAR AND UNAMBIGUOUS. IT PROVIDES THAT THE TRIBUNAL MAY 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. THE POWERS OF THE TRIBUNAL ARE THEREFORE LIMITED TO THE EXTENT OF MAKING NECESSARY AMENDMENT TO AN ORDER PASSED BY THE TRIBUNAL EARLIER WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD. NO POWER OR FOR THAT MATTER, ANY DISCRETION HAS BEEN CONFERRED STATUTORILY ON THE TRIBUNAL TO CONDONE ANY DELAY AND ADMIT APPLICATION U/S 254(2) OF THE ACT UNLIKE THE PROVISIONS OF SECTION 253(5) OF THE ACT. 5. UNDER THE PROVISIONS OF SECTION 253(5) OF THE ACT, THE TRIBUNAL MAY ADMIT AN APPEAL OR PERMIT THE FILING OF A MEMORANDUM OF CROSS- OBJECTIONS AFTER THE EXPIRY OF THE RELEVANT PERIOD REFERRED TO IN SUB- SECTION (3) OR SUB-SECTION (4), IF IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. 6. GIVEN THAT THE STATUTORY TIME PERIOD OF FILING THE MISC. APPLICATION HAS NOW BEEN REDUCED BY THE FINANCE ACT 2016 TO SIX MONTHS FROM EARLIER FOUR YEARS PERIOD, THERE SEEMS TO BE A CASE FOR PROVIDING SUITABLE M.A. NO. 128 & 129/JP/2017 M/S B. D. MUNDRA & SONS, KOTA VS. ACIT, KOTA 4 PROVISIONS, ON THE LINES OF SECTION 253(5) OF THE ACT, WHEREBY THE DELAY IN FILING THE MISC. APPLICATION MAY BE CONDONED IN CASES SHOWING SUFFICIENT CAUSE TO THE SATISFACTION OF THE TRIBUNAL. HOWEVER, TILL SUCH TIME, THE LEGISLATURE DOESNT BRING IN APPROPRIATE AMENDMENT TO THE STATUE, WE ARE GUIDED BY THE EXPRESS WORDINGS OF THE STATUE AS CONTAINED IN SECTION 254(2) OF THE ACT. 7. IN THE INSTANT CASE, THE ORDER OF THE TRIBUNAL WAS PASSED ON 27.10.2016 AND THE MISC. APPLICATION HAS BEEN FILED ON 4.9.2017. AS PER THE ADMITTED POSITION OF THE ASSESSEE AS STATED IN ITS APPLICATION, IN CONSONANCE WITH THE PROVISIONS OF SECTION 254(2) AS AMENDED BY THE FINANCE ACT, 2016, AN APPLICATION FOR AMENDMENT OF THE ORDER WAS TO BE FILED ON OR BEFORE 30.04.2017 HOWEVER IT IS FILED ON 04.09.2017 I.E. LATE BY 4 MONTHS AND 4 DAYS. THE ASSESSEE IS THEREFORE ADMITTING THAT THE ORDER OF THE TRIBUNAL HAS BEEN RECEIVED BY IT AND THERE IS A DELAY OF 4 MONTHS AND 4 DAYS ON ITS PART IN FILING THE SUBJECT MISC. APPLICATIONS. AS WE HAVE STATED ABOVE, THERE IS NO DISCRETION WHICH HAS BEEN CONFERRED STATUTORILY ON US TO CONDONE ANY DELAY IN FILING APPLICATION U/S 254(2) OF THE ACT BEYOND THE STIPULATED PERIOD AS PRESCRIBED. IN LIGHT OF ABOVE DISCUSSIONS, BOTH THE MISC. APPLICATIONS CANNOT BE ENTERTAINED AND ARE HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12/02/2018. SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR M.A. NO. 128 & 129/JP/2017 M/S B. D. MUNDRA & SONS, KOTA VS. ACIT, KOTA 5 FNUKAD@ DATED:- 12/02/2018. * GANESH KR VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI B. D. MUNDRA & SONS, KOTA 2. IZR;FKHZ@ THE RESPONDENT- ACIT, KOTA 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { M.A. NO. 128 & 129/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. 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