M/s Asansol Towers Pvt. Ltd., Kolkata V. ITO, Ward-3(1), Kolkata, Kolkata

MA 06/KOL/2021

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1118 (ITAT-KOLKATA)
• Duration Of Justice: 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 15-02-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MIRAJ D SHAH AR SHRI J
• Keywords: Principle of natural justice; Period of limitation
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C, KOLKATA VIRTUAL HEARING [BEFORE SHRI J. SUDHAKAR REDDY, HONBLE ACCOUNTANT MEMBER & SHRI ABY T. VARKEY, HONBLE JUDICIAL MEMBER] M.A. NO. 06/KOL/2021 (A/O. ITA NO. 1203/KOL/2017) ASSESSMENT YEAR: 2012-13 M/S. ASANSOL TOWERS PVT. LTD..........................................................................APPELLANT 10, GOVERNMENT PLACE, EAST, KOLKATA 700 069 [PAN : AAJCA 1268 N] VS. INCOME TAX OFFICER, WARD-3(1), KOLKATA......................................................................................RESPONDENT APPEARANCES BY: SHRI MIRAJ D. SHAH, A/R, APPEARED ON BEHALF OF THE ASSESSEE. SHRI JAYANTA KHANRA, JCIT, D/R. APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : FEBRUARY 19 TH , 2021 DATE OF PRONOUNCING THE ORDER : FEBRUARY 25 TH , 2021 O R D E R PER J. SUDHAKAR REDDY, AM :- THERE IS A DELAY OF 750 DAYS IN FILING OF THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT AS IT WAS NOT IN RECEIPT OF THE NOTICE OF HEARING OR THE ORDER OF THE TRIBUNAL DT. 11/07/2018, CAUSING THIS DELAY. AN AFFIDAVIT TO THIS EFFECT IS FILED BEFORE US. 2. WE FIND THAT THE ITAT HAS VIDE ITS IMPUGNED ORDER DT. 10/07/2018, DISMISSED THE CASE FOR NON-PROSECUTION. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF ANIL KUMAR NEVATIA VS. ITO, WARD 40(1), KOLKATA & ORS. IN ITA NO. 28 OF 2020, JUDGMENT DT. 23/12/2020, CONSIDERED THE FOLLOWING ISSUE:- 3. TRIBUNAL HELD THAT THERE WAS A DELAY OF 66 DAYS IN FILING THE SAID APPLICATION BY THE ASSESSEE. TRIBUNAL DECLINED TO ENTERTAIN THE SAID APPLICATION BEING BARRED BY LIMITATION HOLDING THAT THE INCOME TAX TRIBUNAL IS A CREATURE OF STATUTE AND THE TRIBUNAL DID NOT HAVE ANY POWER TO PASS AN ORDER UNDER SECTION 254(2) OF THE ACT BEYOND A PERIOD OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER SOUGHT TO BE RECTIFIED WAS PASSED. 4. IT WAS FURTHER HELD BY THE TRIBUNAL THAT SINCE THE ORDER WAS PRONOUNCED ON SEPTEMBER 09, 2018, IN OPEN COURT, IT WAS TO BE PRESUMED THAT THE ASSESSEE HAD THE KNOWLEDGE OF THE ORDER ON THE DATE OF PRONOUNCEMENT OF THE ORDER. THE HONBLE COURT DECIDED AS FOLLOWS:- 13. THE ANSWER TO THE CONTROVERSY CAN EASILY BE TRACED TO SECTION 268 OF THE ACT, WHICH HAS BEEN GLOSSED OVER BY THE PARTIES BEFORE US AS WELL AS BY THE TRIBUNAL BELOW. SECTION 268 OF THE INCOME TAX ACT READS AS FOLLOWS: ' EXCLUSION OF TIME TAKEN FOR COPY. 2 M.A. NO. 06/KOL/2021 (A/O. ITA NO. 1203/KOL/2017) ASSESSMENT YEAR: 2012-13 M/S. ASANSOL TOWERS PVT. LTD. 268. IN COMPUTING THE PERIOD OF LIMITATION PRESCRIBED FOR AN APPEAL OR AN APPLICATION UNDER THIS ACT, THE DAY ON WHICH THE ORDER COMPLAINED OF WAS SERVED AND, IF THE ASSESSEE WAS NOT FURNISHED WITH A COPY OF THE ORDER WHEN THE NOTICE OF THE ORDER WAS SERVED UPON HIM, THE TIME REQUISITE FOR OBTAINING A COPY OF SUCH ORDER, SHALL BE EXCLUDED.' 14. THE SAID SECTION HAS REPLACED SECTION 67-A OF THE INDIAN INCOME TAX ACT, 1922. THE SAID SECTION PROVIDED AS FOLLOWS:- 'SECTION 67A. COMPUTATION OF PERIODS OF LIMITATION. -IN COMPUTING THE PERIOD OF LIMITATION PRESCRIBED FOR AN APPEAL UNDER THIS ACT OR FOR AN APPLICATION UNDER SECTION 66, THE DAY ON WHICH THE ORDER COMPLAINED OF WAS MADE, AND THE TIME REQUISITE FOR OBTAINING A COPY OF SUCH ORDER, SHALL BE EXCLUDED.' 15. A COMPARISON OF THE AFORESAID TWO SECTIONS MAKES IT CLEAR THAT BY INTRODUCING SECTION 268, THE LEGISLATURE INTENDED TO INTRODUCE A DIFFERENT EXCLUSION PERIOD IN CASE THE ORDER COMPLAINED OF HAD BEEN SERVED UPON THE ASSESSEE. 16. SECTION 268 OPERATES IN TWO DIFFERENT SCENARIOS: A. WHEN THE COPY OF THE ORDER WAS SERVED UPON THE ASSESSEE; AND B. WHEN THE COPY OF THE ORDER WAS NOT SERVED WITH THE NOTICE OF ORDER. IN CASE OF FORMER, THE TIME PERIOD BETWEEN THE DATE OF THE ORDER AND DATE OF SERVICE OF THE ORDER UPON THE ASSESSEE HAS TO BE EXCLUDED AND IN THE LATTER CASE THE TIME PERIOD SPENT IN OBTAINING THE CERTIFIED COPY OF THE ORDER BY THE ASSESSEE IS TO BE EXCLUDED. 17. IN THE PRESENT CASE, THE ORDER WAS PASSED ON SEPTEMBER 09, 2018, AND THE COPY OF ORDER WAS ADMITTEDLY SERVED UPON THE ASSESSEE ON DECEMBER 05, 2018. THEREFORE, THE TRIBUNAL SHOULD HAVE EXCLUDED THE TIME PERIOD BETWEEN SEPTEMBER 09, 2018, TO DECEMBER 05, 2018, IN COMPUTING THE PERIOD OF LIMITATION. THE TRIBUNAL WAS WRONG IN NOT APPLYING THE EXCLUSION PERIOD IN COMPUTING THE PERIOD OF LIMITATION AND REJECTING THE APPLICATION BEING BARRED BY LIMITATION. 18. IF SECTION 254(2) IS READ WITH SECTIONS 254(3) AND 268 OF THE ACT AND NO HARDSHIP OR UNREASONABLENESS CAN BE FOUND IN THE SCHEME OF THE ACT. THE COURT NEED NOT MAKE A VIOLENCE TO THE WORDS OF SECTION 254(2) BY SUBSTITUTING THE WORD WITHIN 'THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED' BY THE WORD 'THE DATE ON WHICH THE ORDER WAS SERVED'. SUCH INTERPRETATION IS ABSOLUTELY UNCALLED FOR WHEN THE APPLICATION HAS BEEN SERVED UPON AN ASSESSEE IN TERMS OF SECTION 254(3) OF THE ACT. 19. SINCE IT IS NOT NECESSARY TO INTERPRET SECTION 254(2) DIFFERENTLY TO AVOID HARDSHIP OR ABSURDITY OR UNCERTAINTY, THE JUDGMENT IN D. SAIBABA CASE HAS NO APPLICABILITY TO THE PRESENT CASE. 20. THE CONTROVERSY WITH REGARD TO WHETHER PRONOUNCEMENT OF A JUDGMENT IN OPEN COURT AMOUNTS TO COMMUNICATION OF THE ORDER IS MUCH ADO ABOUT NOTHING SINCE THE ORDER COMPLAINED OF IN THIS CASE WAS SERVED UPON THE ASSESSEE IN TERMS OF SECTION 254(3) OF THE ACT. 3 M.A. NO. 06/KOL/2021 (A/O. ITA NO. 1203/KOL/2017) ASSESSMENT YEAR: 2012-13 M/S. ASANSOL TOWERS PVT. LTD. 21. WE ARE NOT INCLINED TO AGREE WITH THE REASONING OF PETERPLAST SYNTHETICS P. LTD. (SUPRA) SINCE THE SAME WAS PASSED WITHOUT CONSIDERING SECTION 268 OF THE INCOME TAX ACT, 1961. HOWEVER, WE AGREE WITH THE ULTIMATE CONCLUSION OF THE SAID JUDGMENT. 22. THE APPEAL IS, ACCORDINGLY, ALLOWED. THE TRIBUNAL BELOW IS DIRECTED TO HEAR OUT THE APPLICATION UNDER SECTION 254(2) TAKEN OUT BY THE ASSESSEE ON MERIT AND DISPOSE OF THE SAME WITHIN A PERIOD OF SIX WEEKS FROM THE DATE OF COMMUNICATION OF THIS ORDER. 23. THE INCOME TAX APPEAL NO. 28 OF 2020 IS ALLOWED. THERE WILL BE NO ORDER AS TO COSTS. 3. APPLYING THE PROPOSITIONS OF LAW LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT, IN THE CASE OF ANIL KUMAR NEVATIA (SUPRA) , WE ADMIT THIS MISCELLANEOUS APPLICATION AND ADJUDICATE THE SAME AS BELOW. 4. BY VIRTUE OF THIS MISCELLANEOUS APPLICATION, THE ASSESSEE SEEKS RECALL OF THE ORDER OF THIS TRIBUNAL DT. 11/07/2018. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED IT HAD NOT RECEIVED THE NOTICE OF HEARING AND HENCE WAS UNABLE TO APPEAR BEFORE THE TRIBUNAL. AN AFFIDAVIT TO THIS EFFECT HAS BEEN FILED. THE TRIBUNAL, PASSED AN EX-PARTE ORDER AND NOT DISPOSED OFF THE CASE ON MERITS. HE ARGUED THAT THE ITAT SHOULD HAVE ADJUDICATED THE APPEAL ON MERITS AND NOT DOING SO, IS A MISTAKE OF THE TRIBUNAL, APPARENT ON RECORD. HE SUBMITTED THAT THE ORDER OF THE TRIBUNAL DT. 11/07/2018 BE RECALLED AND APPEAL OF THE ASSESSEE RESTORED FOR FRESH ADJUDICATION ON MERITS. 3. THE LD. D/R THOUGH NOT LEAVING HIS GROUND ADMITTED THAT THERE IS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 4. HEARD RIVAL CONTENTIONS. WE FIND THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM APPEARING BEFORE TRIBUNAL ON THE DATE OF HEARING. UNDER THESE CIRCUMSTANCES, WE RECALL THE ORDER OF THE TRIBUNAL DT. 11/07/2018, PASSED EX-PARTE AS PER THE PROVISO TO RULE 24 OF THE ITAT RULES . THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR FRESH HEARING IN DUE COURSE. NOTICE OF HEARING SHALL BE ISSUED TO BOTH THE PARTIES. 5. IN THE RESULT, THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 25 TH DAY OF FEBRUARY, 2021 SD/- SD/- [ABY T. VARKEY] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 25.02.2021 {SC SPS} 4 M.A. NO. 06/KOL/2021 (A/O. ITA NO. 1203/KOL/2017) ASSESSMENT YEAR: 2012-13 M/S. ASANSOL TOWERS PVT. LTD. COPY OF THE ORDER FORWARDED TO: 1. M/S. ASANSOL TOWERS PVT. LTD 10, GOVERNMENT PLACE, EAST, KOLKATA 700 069 2. INCOME TAX OFFICER, WARD-3(1), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES