KRISH PACKAGING PVT LTD,NEW DELHI V. DCIT CENTRAL CIRCLE, NOIDA

MA 162/DEL/2025

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Krish Packaging Pvt. Ltd. filed a Miscellaneous Application to recall an ex-parte order passed by the Income Tax Appellate Tribunal, Delhi. The application was necessitated due to the non-appearance of the assessee or its representatives during the original hearing, which was attributed to a lack of knowledge about the hearing and the subsequent order. The assessee argued that the delay in filing the application was justified as they were unaware of the order until they obtained a certified copy from the registry. The Tribunal, referencing a judgment from the Jurisdictional High Court, accepted the assessee's position and allowed the recall of the ex-parte order.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 792932 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-09-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2011-2012
• Appeal Filed On: 22-05-2025
• Other Referred Cases: Pacific Projects Ltd. Vs. ACIT
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISH GUPTA
• Keywords: Period of limitation; Time period of passing order

Judgement Text

"1 M.A No. 162/Del/2025 Krish Packaging Pvt. Ltd. IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCHES: ‘H’ NEW DELHI BEFORE SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER AND SHRI BRAJESH KUMAR SINGH, ACCOUNTANT MEMBER M. A NO. 162/DEL/2025 (A.Y 2011-12) (in ITA No.3942/DEL/2019) Krish Packaging Pvt.Ltd. F-11, Basement Green Park Extension, New Delhi PAN-AACCK8980A (APPELLANT) vs Dy. CIT Central Circle Noida (RESPONDENT)) Applicant by Shri Salil Agarwal, Sr. Adv& Shri Shailesh Gupta, Adv Respondent by Shri Manish Gupta, Sr. DR ORDER PER YOGESH KUMAR U.S., JUDICIAL MEMBER: The above mentioned Miscellaneous Application is filed by the Assessee with a prayer to recall the ex-parte order dated 27/09/2023 passed by the Tribunal in ITA No. 3942/Del/2019 (Assessment Year 2011-12). 2. There is a delay of 417 days in filing the present Miscellaneous Application.The Ld. Sr. Counsel appearing for the appellant submitted that non-appearance of the assessee/Assessee’s Representative on the date of hearing of the main Appeal was neither intentional nor deliberate. Further submitted that the assessee was unaware of the final order passed in the main Appeal, copy of the order was not served on the assessee and the Assessee obtained the certified copy Date of Hearing 19.09.2025 Date of Pronouncement .09.2025 Printed from counselvise.com 2 M.A No. 162/Del/2025 Krish Packaging Pvt. Ltd. from the registry on 11/02/2025, thereafter filed the present Miscellaneous Application on 22/05/2025, which is well within the period of limitation prescribed under the Act. The Ld. Sr. Counsel relying on the Judgment of Jurisdictional High Court in the case of the Pacific Projects Ltd. Vs. ACIT reported in 430 ITR 522, sought for allowing the M.A by restoring the Appeal in ITA No. 3942/Del/2019 for consideration afresh. 3. Per contra, the Ld. D.R submitted that the Assessee has been represented by his Authorised Representative on 15/12/2022, thereafter neither the Assessee nor his representative appeared in the proceedings of main Appeal, therefore, the Tribunal rightly decided the Appeal after hearing the Revenue. Thus, contended that the present M.A deserves to be dismissed as barred by limitation. 4. It is seen from the final order of the Tribunal dated 27/09/2023, the Appeal filed by the Assessee has been decided ex-parte wherein neither the Assessee nor the Representative of the Assessee have appeared and made any submission. As per the assessee, the Assessee had no knowledge of disposing the Appeal filed by the Assessee, order of the Tribunal has not been served on the Assessee by the Tribunal and the Assessee applied for the certified copy of the order and obtained the same only on 11/02/2025. Therefore, the said date of receipt of the certified copy from the registry has to be Printed from counselvise.com 3 M.A No. 162/Del/2025 Krish Packaging Pvt. Ltd. considered as date of service/notice of the order of the Tribunal, therefore, M.A filed on 22/05/2025 which is well within the period of limitation. 5. The Hon’ble Jurisdictional High Court in the case of the Pacific Projects Ltd. Vs. ACIT reported in 430 ITR 522, held that the limitation period for filing the Miscellaneous Application starts from the date when the order came to the knowledge of the Assessee and not from the date of pronouncement. The relevant portion of the ratio laid down by the Jurisdictional High Court is as under:- “7. This Court is also of the view that the ITAT has erroneously concluded that the miscellaneous application filed by the petitioner was barred by limitation under Section 254(2) of the Act inasmuch as the petitioner had filed the miscellaneous application within six months of actual receipt of the order. If the petitioner/assessee had no notice and no knowledge of the order passed by the ITAT, it cannot be said that the limitation would start from the date the order was pronounced by the Tribunal. 8. In fact, the issue raised in the present petition is squarely covered in favour of the petitioner/assessee by way of the Division Bench judgment of this Court in ‘Golden Times Services Pvt. Ltd. Vs. DCIT’ being W.P. (C) No. 402/2020 dated 13th “10. Be that as it may, the real question before us is as to what would be the relevant date for the purpose of commencement of period of limitation. To hold the date of the order to be the relevant date for the purpose of calculating the period of six months envisaged under Section 254(2) of the Act, can lead to several absurd and anomalous situations. An order passed without the knowledge of the aggrieved party, would render the remedy against the order meaningless as the same would be lost by limitation while the person aggrieved would not even know that an order has been passed. Such an interpretation would not advance the cause of justice and would not be the correct approach and thus cannot be countenanced. A person who is aggrieved or concerned with an order would legitimately be expected to exercise his rights conferred by the provision and unless the order is communicated or is known to him, either actually or constructively, he would not be in a position to avail such a remedy. The words “six months from the end of the month in which the order was passed” therefore, cannot be given a narrow and restrictive interpretation. There are several decisions of the Apex Court and other High Courts, where similar question came up for consideration. The Courts have always leaned in favour of an interpretation which would enable an aggrieved party to avail its remedy in a meaningful manner, so that the right conferred by a provision does not remain fanciful or illusionary. Printed from counselvise.com 4 M.A No. 162/Del/2025 Krish Packaging Pvt. Ltd. xxxxxxxxxxxxxxxx 12. As noted above, Section 254(2) of the Act has undergone certain amendments. However, there is no dispute that the provision still retains the distinctive two parts as observed by the Supreme Court in the abovenoted case. We are presently concerned with a scenario under Section 254 (2) of the Act where the assessee has invoked its jurisdiction seeking rectification / amendment of the order passed by the ITAT. In this situation, the assessee has claimed that it did not have the knowledge of the earlier order passed by the ITAT on 18.10.2016 and the period of limitation of six months should commence from the date of the receipt of the order. In our opinion, the limitation would begin to run when the affected person has the knowledge of the decision. The date when the order was passed cannot be solely determined by referring to the date when the same was signed by the ITAT. We further find that under Section 254 (3) of the Act, the law stipulates that the ITAT shall send a copy of the order passed by it to the assessee and the Principal Commissioner. Further, Rule 35 of the ITAT Rules also requires that the orders are required to be communicated to the parties. For ready reference, Section 254 (3) of the Act and the relevant rule are reproduced hereinunder: “254. Orders of Appellate Tribunal. xxxxxxxxxxxx (3) The Appellate Tribunal shall send a copy of any orders passed under this section to the assessee and to the Principal Commissioner or Commissioner. 35. Order to be communicated to parties. The Tribunal shall, after the order is signed, cause it to be communicated to the assessee and to the Commissioner.” 13. From the abovenoted provisions, it emerges that the Section and the Rule mandates the communication of the order to the parties. Thus, the date of communication or knowledge, actual or constructive, of the orders sought to be rectified or amended under Section 254(2) of the Act becomes critical and determinative for the commencement of the period of limitation. The ITAT has not applied its mind on this aspect and has been swayed by the literal and mechanical construction of the words “six months from the end of the month in which the order was passed”. The ITAT failed to even delve into the question whether the affected party, either actually or constructively, was in knowledge of the order passed by the ITAT. 15. The assessee had challenged the ex parte order dated 18.10.2016 and consequently, keeping in view, the aforesaid decisions, we are of the considered opinion that the starting point of limitation provided under Section 254 (2) of the Act has to commence from the date of the actual receipt of the judgment and order passed by the ITAT which is sought to be the reviewed.” 9. For the foregoing reasons, the course adopted by the ITAT at the first instance, by dismissing the appeal for non-prosecution, and then compounding the same by refusing to entertain the application for recall of the order, cannot be sustained. We, therefore have no hesitation in quashing the impugned order. Accordingly, the present petition is allowed. The order dated 29th July, 2019 is quashed and in the peculiar facts and circumstances of the case, we also set-aside the ex-parte order dated 1st September 2017 with a direction that the ITAT shall hear and dispose of ITA No. 6686/De1/2013 on merits after affording the parties an opportunity of hearing.” Printed from counselvise.com 5 M.A No. 162/Del/2025 Krish Packaging Pvt. Ltd. 6. In the present case, the Tribunal passed order in the main Appeal in the absence of the Assessee and as per the Assessee, the order of the Tribunal not been served on the Assessee. Further contended that Assesseeobtained the certified copy of the order passed in the main appeal only on 11/02/2024. Considering the fact that the Appeal of the Assessee has been decided ex-parte without hearing the Assessee and in the absence of any contrary material brought on record against the above factual aspects put forth by the Assessee, by following the ratio laid down by the Jurisdictional High Court in the case of Pacific Projects Ltd. Vs. ACIT (supra), we recall the order dated 27/09/2023 passed in ITA No. 3942/Del/2019 and restore the Appeal to its original number. The registry is directed to fix the Appeal for hearing on 11/11/2025. 7. In the result, M.A filed by the Assessee is allowed. Order pronounced in the open court on 24/09/2025. Sd/- Sd/- (BRAJESH KUMAR SINGH) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 24/09/2025 R.N, Sr. PS Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Printed from counselvise.com 6 M.A No. 162/Del/2025 Krish Packaging Pvt. Ltd. Asst. Registrar, ITAT, New Delhi Printed from counselvise.com "