Income Tax Officer(Exemptions), Rajahmundry V. Sri Pandiri Mahadevudu Choultry, Rajahmundry

MA 10/VIZ/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 7419 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 1 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-04-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 06-03-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Period of limitation; Time period of passing order; Bonafide mistake
• Section: 80P; 201; 254(2); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI N.K. CHOUDHRY, HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, HON'BLE ACCOUNTANT MEMBER M.A.NO. 10/VIZ/ 2019 (ARISING OUT OF I.T.A. NO. 337/VIZ/2018 ) (ASST. YEAR : 201 4 - 1 5 ) ITO (EXEMPTIONS) , RAJAMAHENDRAVARAM. VS. M/S. SRI PANDIRI MAHADEVUDU KOTILIN GALA CHOULTRY , D.NO. 13 - 110, KOTILINGALAGHAT, RAJAHMUNDRY. (APPELLANT) PAN NO. AADTS 8365 B (RESPONDENT) ASSESSEE BY : SHRI C.SUBRAHMANYAM , FC A DEPARTMENT BY : SMT.SUMAN MALIK, SR. DR DATE OF HEARING : 24 / 03 /2021 . DATE OF PRONOUNCEMENT : 06 / 0 4 /2021 . O R D E R PER N.K. CHOUDHRY , JUDICIAL MEMBER THIS MISC. APPLICATION HAS BEEN PREFERRED BY THE REVENUE DEPARTMENT FOR RECALLING OF THE ORDER DATED 10/08/2018 PASSED BY THIS TRIBUNAL IN ITA NO. 337/VIZ/2018 FOR THE A.Y. 201 4 - 1 5 . 2. THE ORDER DATED 10/08/2018 WAS PASSED BY THE C O - ORDINATE B ENCH , WHEREIN THE HON'BLE B ENCH DISMISSED THE APPEAL OF THE REVENUE DEPARTMENT BY HOLDING AS UNDER: - 2. WHEN THIS APPEAL IS TAKEN UP FOR HEARING, LD. DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED THAT HE FILED AN APPLICATION FOR 2 MA NO. 10/VIZ/2019 ( M/S. SRI PANDIRI MAHADEVUDU KOTILINGALA CHOULTRY ) WITHDRAWAL OF APPEAL DATED 03/07/2018 AND P RAYED THAT HE MAY BE PERMITTED TO WITHDRAW THE APPEAL. 3. CONSIDERING THE APPLICATION FOR WITHDRAWAL DATED 03/07/2018 AND ALSO CONSIDERING THE SUBMISSION OF LD. DR, THIS APPEAL FILED BY THE REVENUE IS DISMISSED AS WITHDRAWN. 4 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED AS WITHDRAWN. 3 . THE REVENUE DEPARTMENT HAS PREFERRED THE INSTANT MISC. APPLI CATION FOR RECTIFICATION AND RAISED THE ISSUE THAT THOUGH THE HON'BLE C O - ORDINATE B ENCH MENTIONED IN THE ORDER THAT LD. DR HAS FILED AN APPLICATION FOR WITHDRAWAL OF APPEAL DATED 03/07/2018 AND THEREFORE HE MAY BE PERMITTED TO WITHDRAW THE APPEAL , AND ON THE BASIS OF THAT APPLICATION OF WITHDRAWAL, THE APPEAL OF THE REVENUE WAS DISMISSED AS WITHDRAWN BY THE HON'BLE BENCH , H OWEVER, IN REAL FACT, NO SUCH APPLICATION FOR WITHDRAWAL WAS EVER FILED BEFORE THE BENCH NOR PLACED IN ANY OF THE RECORD PERTAINING TO THIS CASE AND/OR NEVER GIVEN THE COPY OF THE SAME TO THE ASSESSEE. HENCE, THERE APPEARS TO BE A BONAFIDE MISTAKE IN ADJUDICATING THE APPEAL I.E. ITA NO. 337/VIZ/ 2018 BY THE HON'BLE BENCH, THEREFORE THE APPEAL OF THE REVENUE DEPARTMENT IS LIABLE TO BE RESTORED ON ITS ORIGINAL NUMBER BY RECTIFYING THE ORDER DATED 10/08/2018 PASSED BY THE HON'BLE C O - ORDINATE B ENCH. 4 . LD.AR DID NOT REFUTE THE CLAIM OF THE REVENUE DEPARTMENT, HOWEVER, EMPHASISED THAT FOR FILLING AN APPLICATION FOR RECTIFICATION U/SEC. 254(2) OF THE ACT, THE LIMITATION PERIOD PRESCRIBED IS ONLY SIX MONTHS , WHEREAS IN THE INSTANT CASE, THE ORDER WAS PASSED ON 10/08/2018 , AND THE APPLICATION FOR RECTIFICATION WAS FILED ON 06/03/ 2019. AS PER PROVISION OF LAW, THE APPLICATION FOR RECTIFICATION WAS SUPPOSED TO BE FILED ON OR BEFORE 28/02/2019 AND THEREFORE THE INSTANT M ISC. APPLICATION FILED ON DATED 06/03/2019 IS LIABLE TO BE DISMISSED BEING BARRED BY LIMITATION. 3 MA NO. 10/VIZ/2019 ( M/S. SRI PANDIRI MAHADEVUDU KOTILINGALA CHOULTRY ) 5. HAVING HEARD THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD . IT IS NOT DISPUTED BY THE ASSESSEE THAT THE APPLICATION FOR WITHDRAWAL DATED 03/07/2018 WAS NEITHER FILED BEFORE THE BENCH NOR PLACED ON RECORD AND COPY OF THE SAME WAS ALSO NOT GIVEN TO THE ASSESSEE, T HEREFORE, UNDER THE PECULIAR FACTS AND CIRCUMSTANCES , THE INSTANT APPLICATION FILED BY THE REVENUE DEPARTMENT IS LIABLE TO BE ALLOW ED ON MERIT . 6 . HOWEVER, CONSIDERING THE LIMITATION PERIOD , THE ORDER WHICH REQUIRES RECTIFICATION WAS PASSED ON 10/08/2018 . THE PROVISIONS OF SECTION 254(2) PRESCRIBES THAT 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 AMEN DMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER . 6.1 MEANING THEREBY , THE APPLICATION IS SUPPOSED TO BE FILED WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED. HOWEVER THE QUESTION ARISE AS TO WHETHER TIME GAP BETWEEN THE DATE OF ORDER AND THE DATE ON WHICH THE ORDER ACTUALLY SERVED, IS LIABLE TO BE EXCLUDED FROM THE TIME LIMIT PRESCRIBED OR NOT. T HE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF ANIL KUMAR NEVATIA VS INCOME TAX OFFICER { (2021) 125 TAXMANN.COM 169(CALCUTTA) } WHILE DEALING WITH THE IDENTICAL SITUATION HELD IN PARA NO. 17 OF ITS JUDGEMENT: 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, 20 18, 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. 4 MA NO. 10/VIZ/2019 ( M/S. SRI PANDIRI MAHADEVUDU KOTILINGALA CHOULTRY ) FROM THE JUDGEMENT OF THE HONBLE CALCUTTA HIGH COURT IT IS CLEAR THAT TIME GAP BETWEEN THE DATE OF ORDER AND THE DATE ON WHICH THE ORDER ACTUALLY SERVED, IS LIABLE TO BE EXCLUDED FROM THE TIME LIMIT PRESCRIBED. 6.2 F URTHER, THE HON'BLE DELHI HIGH C OURT IN THE CASE OF GOLD EN TIMES SERVICES VS. DCIT [(2020)422 ITR 102] HELD THAT LIMITATION PERIOD WOULD NOT START FROM THE DAY ON WHICH THE ORDER WAS PRONOUNCED BY THE TRIBUNAL , BUT IT WOULD START FROM THE POINT WHEN SUCH ORDER CAME INTO THE KNOWLEDGE OF THE ASSESSEE . 6. 3 THOUGH AS PER PROVISOS OF LAW, IT PRESCRIBES THAT TRIBUNAL MAY RECTIFY ANY MISTAKE, WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED, HOWEVER THE HONBLE HIGH COURTS, WHILE INTERPRETING THE PROVISIONS IN ITS TRUE SPIRIT AND LIBERALLY HELD THAT THE TIME FOR FILING OF RECTIFICATION APPLICATION WILL START FROM THE DATE OF THE RECEIPT OF THE ORDER AND OR/ WITHIN SIX MONTHS OF RECEIVING THE ORDER WHEN SUCH ORDER CAME INTO THE KNOWLEDGE OF THE ASSESSEE. 6. 4 THE HONBLE APEX COURT IN THE CASE OF CIT VS. VEGETABLE PRODUCTS 88 ITR 192, LAID DOWN THE FOLLOWING PROPOSITION TO THE EFFECTS 'WHENEVER THERE ARE TWO REASONABLE CONSTRUCTIONS OF A TAXING PROVISION ARE POSSIBLE THAT CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADOPTED'. EV EN RECENTLY THE APEX COURT IN THE CASE OF THE MAVILAYI SERVICE CO - OPERATIVE BANK LTD. & ORS VERSUS COMMISSIONER OF INCOME TAX CALICUT & ANR {CIVIL APPEAL NOS. 7343 - 7350 OF 2019 DECIDED ON 12 TH JANUARY 2021} WHILE DEALING WITH SECTION 80P OF THE IT ACT, HELD : S ECTION 80P OF THE IT ACT BEING A BENEVOLENT PROVISION ENACTED BY PARLIAMENT TO ENCOURAGE AND PROMOTE THE CREDIT OF THE CO - OPERATIVE SECTOR IN GENERAL MUST BE READ LIBERALLY AND REASONABLY, AND IF THERE IS AMBIGUITY, IN FAVOUR OF THE ASSESSEE. F ROM THE JUDGEMENTS OF THE HONBLE APEX COURT IT IS CLEAR THAT WHENEVER T HE POSSIBLE INTERPRETATION AND/ OR IMPLEMENTATION OF PROVISION 5 MA NO. 10/VIZ/2019 ( M/S. SRI PANDIRI MAHADEVUDU KOTILINGALA CHOULTRY ) IS NECESSITATE, THEN IT IS IMPERATIVE TO CONSTRUCT LIBERALLY AND REASONABLY, AND IF THERE IS AMBIGUITY, IN FAVOUR OF THE ASSESSEE. 6. 5 FROM THE VERDICTS (SUPRA) OF THE HON'BLE HIGH COURTS , IT IS CLEAR THAT LIMITATION PERIOD FOR FILING OF APPLICATION WOULD START FROM THE DATE OF RECEIPT OF ORDER AND/OR CO MING IN TO THE KNOWLEDGE OF THE ASSESSEE . THUS THE RECTIFICATION APPLICATION CAN BE MADE AT ANY TIME WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS SERVED . 6. 6 I N THIS CASE, FROM THE RECORD IT IS CLEAR THAT THE IMPUGNED ORDER WAS SERVED UPON THE LD.CIT(E) ON DATED 05/ 09/2018 AND THEREFORE THE LD.CIT(E) WAS ENTITLED TO FILE THE MISC. APPLICATION WITHIN 06 MONTHS FROM THE END OF MONTH IN WHICH ORD ER SERVED I.E. SEPTEMBER 2018 , MEANING THEREBY BY 31 ST MARCH OF 2019, WHEREAS THE RE VENUE DEPARTMENT FILED THE INSTANT APPLICATION ON 06/03/2019 , HENCE WE DONT HAVE HESITATION TO HOLD THAT THE APPLICATION UNDER CONSIDERATION HAS BEEN FILED WITHIN THE PRESCRIBED LIMITATION PERIOD AS DISCUSSED ABOVE . 6. 7 CONSEQUENTLY, THE MISC. APPLICATION FILED BY THE REVENUE DEPARTMENT STANDS ALLOWED AND THE ORDER DATED 10/08/2018 STAND S RECALLED AND ITA NO. 337/VIZ/ 2018 IS FIXED FOR HEARING ON DATED 15/04/2021 . THE REGISTRY IS DIRECTED TO ISSUE NOTICES OF HEARING TO THE PARTIES IN DUE COURSE. 7 . IN THE RESULT, MISC. APPLICATION FILED BY THE REVENUE DEPARTMENT STANDS ALLOWED . ORDER PRONOUNCED IN OPEN COURT ON TH IS 0 6 T H DAY OF MARCH , 2021 . S D / - S D / - (D.S. SUNDER SINGH) ( N.K. CHOUDHRY ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 0 6 T H MARCH , 20 2 1 . 6 MA NO. 10/VIZ/2019 ( M/S. SRI PANDIRI MAHADEVUDU KOTILINGALA CHOULTRY ) VR/ - COPY TO: 1. THE ASSESSEE - M/S. SRI PANDIRI MAHADEVUDU KOTILINGALA CHOULTRY, D.NO. 13 - 110, KOTILINGALAGHAT, RAJAHMUNDRY. 2. THE REVENUE ITO (EXEMPTIONS ), RAJAMAHENDRAVARAM. 3. THE CIT (EXEMPTIONS) , HYDERABAD. 4. THE CIT(A) - 11 , HYDERABAD. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.