ITO, JAIPUR V. VIKAR AHMED, JAIPUR

MA 17/JPR/2025

AI Insights

The case involves Vikar Ahmed, the appellant, who faced an addition to his income under section 698 of the Income Tax Act, 1961, amounting to Rs. 213,000 for the assessment year 2008-09. Initially, his appeal was dismissed by the CIT (A) and subsequently by the ITAT due to non-compliance, specifically non-appearance and non-receipt of notice or order communication. The appellant, unaware of the ITAT's decision until a later date when his application for immunity under VSVS-2024 was rejected, filed a Miscellaneous Application under section 254(2) of the Income Tax Act, seeking to recall the ITAT's earlier order. The Tribunal found that the non-receipt of notice and order was beyond the control of the appellant and thus condoned the delay, allowing the application and recalling the ex-parte order.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 312744 (ITAT-JAIPUR)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-04-2025
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Other Referred Cases: Om Prakash Sangwan vs ITO Ward 33(4), New Delhi, CIT vs. Multiplan India (Pvt.) Ltd
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: GAUTAM SINGH CHOUDHARY; ADD
• Assessee Lawyers: SUHANI MEHARWAL
• Keywords: Condonation of delay; Reasonable cause; Period of limitation
• Section: 143(3)

Judgement Text

" vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM MA No. 17/JP/2025 (Arising out of vk;dj vihy la- ITA No. 442/JP/2014) fu/kZkj.k o\"kZ@Assessment Year : 2008-09 Sh. Vikar Ahmed F-09, Rampath, Shyam Nagar New Sanganer Road, Jaipur cuke Vs. The ITO Ward-03 Sikar LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAYPA 6063 B vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Suhani Meharwal, CA jktLo dh vksj ls@ Revenue by : Shri Gautam Singh Choudhary, Add. CIT a lquokbZ dh rkjh[k@ Date of Hearing : 24/04/2025 mn?kks\"k.kk dh rkjh[k@Date of Pronouncement : 29/04/2025 vkns'k@ ORDER PER: DR. S. SEETHALAKSHMI, J.M. The present Miscellaneous Application has been filed by the assessee u/s 254(2) of the Act against the order of ITAT, Jaipur Benches, Jaipur in ITA No. 442/JP/2014 dated 11/02/2016 praying therein following reasons to suitably modified or recalled of its order: MA No. 17/JP/2025 Vikar Ahmed vs. ITO 2 “1 In the case of assessee, an order u/s 143(3) of the Income Tax Act, 1961 was passed on dated 28.12.2010 making an addition u/s 698 amounting to Rs. 213000.00 in the total income declared by assessee. (Order enclosed at Exhibit 1). 2 First appeal was dismissed by Ld CIT (A). 3 Assessee filed further appeal before this honorable Bench on dated 04.06.2014. 4 This appeal ITA No. 442/JP/2014 has been decided against the assessee limine for non-compliance of assessee on dated 11.02.2016. (Order enclosed at Exhibit 2). 5. No notice of hearing was communicated to assessee. 6. No order was also communicated to assessee. 7. The happening of order is come into knowledge of assessee, when the application VSVS-2 of assessee was rejected by the Ld. CIT. 8. Assessee filed an application in Form VSVS-1 under VSVS-2024 to get immunity from the levy of interest and penalty. On dated 13.12.2024 but the same was rejected for non-pendency of the case before any appellate forum. 9 When the rejection order was come into knowledge of assessee then he investigated from the Income Tax department and he got the knowledge of limine order of this bench. 10 That, this order was then downloaded from ITAT website with the help of my tax consultant. 11 That this petition is prepared within fortnight of receipt of the order, which is well within time allowed u/s 254(2) of the I.T.Act, 1961. 12 That this is the first petition and assessee did not file any application earlier u/s 254(2). 13 That the petition is well within powers vested on your honours under Rule 24 of The Income Tax Appellate Tribunal Rules, 1963. 14 That hon, ble Delhi High Court in case of Om Prakash Sangwan Delhi vs ITO Ward 33(4), New Delhi held that no time is prescribed MA No. 17/JP/2025 Vikar Ahmed vs. ITO 3 under Rule 24 of the Income Tax Appellate Tribunal Rules for restoration. (Copy of judgment is enclosed) Your honours, no notice was given to assessee for hearing and further, no order has been communicated to assessee. Therefore, in view of Rule 25 and decision of Delhi high court (supra) the petition may kindle be accepted and restore the appeal. 2. At the outset of hearing, the bench noted the present application has been delayed by 3095 days. Apropos to the contention of delay in filing the present miscellaneous application the assessee submitted the following prayer. Sub: APPLICATION FOR CONDONATION OF DELAY IN FILING MISCELLANEOUS APPLICATION Ref: Vikar Ahmed MA 17/JPR/2025 AY 2008-09 In reference to above subject, I am to submit as under: - 1. That the applicant is an assessee under the Income-tax Act, 1961 and had filed the above-mentioned appeal before the Hon'ble Tribunal, which was decided ex parte by order dated [11.02.2016-ITA 442/JP/2014]. 2. That the delay of 3095 days in filing the present Miscellaneous Application has occurred solely due to the fact that neither any notice of hearing was ever received by the applicant nor was any intimation or copy of the order passed by the Hon'ble Bench ever served upon the applicant. 3. That the applicant came to know about the said ex-parte order only recently, when other proceedings were initiated against the applicant by the Department based on the said ITAT order. MA No. 17/JP/2025 Vikar Ahmed vs. ITO 4 4. That immediately upon learning about the said order, the applicant took prompt steps to obtain the copy of the order and to file the present Miscellaneous Application under section 254(2) of the Income Tax Act, 1961. 5. That the non-receipt of notices and non-communication of the order were entirely beyond the control of the applicant and the delay is neither deliberate nor due to any negligence on the part of the applicant. 6. That the applicant submits that grave prejudice has been caused due to the ex parte disposal of the appeal and the same deserves to be recalled in the interest of justice. It is, therefore, most respectfully prayed that this Hon'ble Tribunal may graciously be pleased to condone the delay an oblige assesssee. 3. On the other hand, ld. DR supported the order of ITAT, Jaipur (supra) praying that the assessee wants to get ITAT’s order reviewed in the grab of Miscellaneous Application. 4. Heard both the parties and perused the material available on record. The bench prima facie noticed that the appeal of the assessee was dismissed on account of non-appearance. The bench noted that there is a substantial delay of 3095 days filing miscellaneous application. But the fact that of the service of the order was not made to the assessee and for that the assessee filed an affidavit dated 19th Feb, 2025 stating that no order or that of order noted fixing hearing of the appeal or that of the service of order. Therefore, in the interest of justice, the miscellaneous MA No. 17/JP/2025 Vikar Ahmed vs. ITO 5 application be considered as from the date when the assessee came to know about passing an order against him. Apropos to the condonation of delay the ld. AR of the assessee relied upon the decision of the Co-ordinate Bench of ITAT, Kolkata Bench-C, Kolkata wherein the bench has on the same reason allowed the miscellaneous application condonation of delay as under:- 2. At the time of hearing, ld. counsel for the assessee submitted that the assessee did not get any notice from this Tribunal regarding hearing of its case and later it was decided ex-parte against the assessee. The ld. AR submitted that the assessee received an information regarding disposal of the case from the office of the ld. Assessing Officer and immediately contacted his counsel soon obtained a certified copy of the appellate order from the office of the Tribunal. 3. The ld. AR further contended that the registry has marked the application filed by the assessee as delayed by 1250 days on the basis of limitation prescribed u/s 254(2) of the I.T. Act. The ld. AR contended that it is not an application seeking rectification in the order passed by the ITAT in terms of section 254(2) of the Act but merely seeking a recall of the ex-parte order in terms of Rule 24 of the Income Tax Appellate Tribunal Rules and the limitation for moving an application prescribed u/s 254(2) of the Act does not attract in the present case. The Hon’ble High Court of Delhi in the case of Om Prakash Sangwan in ITA 625/2018 & CM APPL 21436/2018 and ITA 626/2018 & CM APPL 21437/2018 held as under: \" Learned counsel for the appellant sought to impress upon the Court that the period mentioned in Section 254(2) of the Act only applied when the Tribunal notices the error and decides to proceed ahead to rectify it and per se does not indicate any limitation within which the aggrieved ·party (assessee or Revenue) can approach it. He relied upon the judgments of the Allahabad High Court titled Vijay Kumar Ruia v. Commissioner of Income Tax [2011] 15 taxmann.com (Allahabad) and Gujarat High Court titled Liladhar T Khushlani Vs. Commissioner of Customs Tax Appeal No.915 of2016 delivered on 25.01.2017 for this purpose. This Court is of the opinion that those judgments cannot afford the appellant any comfort. Section 254(2) of the Act was advisably amended to curtail extended period of four years which had been provided to either class of litigants to approach MA No. 17/JP/2025 Vikar Ahmed vs. ITO 6 the IT AT for a rectification. In this case, the Court has considered the submissions of the parties. In this case, the ITAT did not decide the appeal on the merits as it is mandated to but rather rejected for non- prosecution. Rule 24 of the Income Tax Appellate Tribunal's Rules and the other provisions of both the Income Tax Act and Rules indicate that the IT AT has to decide the appeals or matters before it on the merits. In these circumstances, the ITAT's failure to do so, implies that it exceeded its jurisdiction and instead of deciding on the merits, rejected the appeal merely for non-prosecution. In the given circumstances and keeping in view the fact that Rule 25 does not stipulate any period of limitation within which the aggrieved party can approach the Tribunal, it is open to the appellant to approach the Tribunal with a suitable application for restoration of the appeals; in such event, the appeals could be considered on their merits and decided in accordance with law after hearing both the parties, provided, the application is presented before the ITAT within thirty days from today.\" 4. We respectfully following the Hon’ble Delhi High Court’s order abstracted (supra) and considering the present facts of the case, condone the delay in filing the miscellaneous application and admit it for adjudication. 5. We after going through the submission made by the ld. AR and considering the facts of the case, notice that nobody appeared before this Tribunal at the time of hearing and appeal was heard by this Tribunal and dismissed the appeal ex-parte against the assessee. The instant miscellaneous application is filed by the assessee praying for recalling of the order since it was decided ex-parte without going into the merits of the case. 6. We find that Tribunal had passed the order ex-parte due to nonappearance on behalf of the assessee. We noticed that there was a reasonable cause which prevented the ld. AR to appear before this Tribunal on the date fixed for hearing, since no notice was served upon the assessee. So we are inclined to recall the impugned order dated 27.3.2019 passed in ITA No. 8/Kol/2017 and direct the registry to fix it in due course and inform both the parties. 7. In the result, miscellaneous application of the assessee is allowed as per terms indicated hereinabove. 4. Considering the above case laws as discussed and on being consistent that we condoned the delay, the ld. AR of the assessee on the merits miscellaneous application submitted that the Tribunal MA No. 17/JP/2025 Vikar Ahmed vs. ITO 7 has decided the appeal of the assessee on 11.02.2016 for which no notice was served, he also submitted that as per provisions of rule 24 of the Income Tax Appellate Tribunal Rule, the appeal is required to be disposed of on its merits but ITAT’s order dated 11.02.2016 appeal was dismissed relying on the decision of CIT vs. Multiplan India (Pvt.) Ltd/1991, 38 ITD 320 that order of Multiplan India (Pvt.) Ltd. was also quashed by the Hon’ble Delhi High Court. Based on this observation, the Miscellaneous Application filed by the assessee is allowed. In the result, Miscellaneous Application is allowed as indicated above. Order pronounced in the open Court on 29/ 04/2025 Sd/- Sd/- ¼jkBksM deys'k t;UrHkkbZ ½ ¼MkWa-,l-lhrky{eh½ (RATHOD KAMLESH JAYANTBHAI) (Dr. S. Seethalakshmi) ys[kk lnL; @Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 29/04/2025 *Ganesh Kumar, Sr. PS vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Sh. Vikar Ahmed, Jaipur 2. izR;FkhZ@ The Respondent- ITO, Ward-6(2), Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (MA No. 17/JP/2025) vkns'kkuqlkj@ By order lgk;d iathdkj@Asst. Registrar "