ACIT - 13 (1)(1), MUMBAI V. POOJA HARDWARE PVT. LTD., MUMBAI

MA 103/MUM/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3475 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-07-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 14-07-2022
• Assessment Year: 2012-2013
• Appeal Filed On: 09-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation; Time period of passing order
• Section: 12A; 254(2)

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL “C” BENCH, MUMBAI BEFORE SHRI PAVAN KUMAR GADALE, HON’BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON’BLE ACCOUNTANT MEMBER M.A.No. 103/MUM/2022 [ARISING OUT OF ITA No. 3712/MUM/2018 (A.Y. 2012-13)] ACIT – 13(1)(1) Aayakar Bhavan, M.K. Road Mumbai - 400020 v. M/s. Pooja Hardware Pvt. Ltd., Flat No. A-102, Sai Darshan Building No.10, Prem Nagar, Off. S.V. Road Borivali (W), Mumbai - 400092 PAN: AAECP2624G (Appellant) (Respondent) Assessee by : Dinkle Hariya Department by : Mahita Nair Date of hearing : 15.07.2022 Date of pronouncement : 21.07.2022 ORDER PER S. RIFAUR RAHMAN (AM) 1. Through this miscellaneous application Revenue is requesting to recall the ITAT order in ITA.No. 3712/Mum/2018 (A.Y.12-13) order dated 28.10.2019. 2 M.A.No. 103/MUM/2022 M/s. Pooja Hardware Pvt. Ltd., 2. At the time of hearing, the bench observed that the appeal of the assessee is adjudicated on 28.10.2019 and as per the section 254(2) of Income-tax Act, 1961 (in short “Act”) the Miscellaneous Application can be filed before the appellate Tribunal at any time within six months from the end of the month in which the order was passed maybe filed with a view to rectify any mistake apparent from the record. Therefore, any Miscellaneous Application in order to rectify the apparent mistake can be filed within six months from the end of the month in which the order was passed. 3. This impugned order was passed on 28.10.2019, therefore the Miscellaneous Application can be filed by 30 th April, 2020. However, in consequent to the Pandemic of COVID-19, the Revenue may not have filed the appeal within the limitation period. as per the decision of the Hon'ble Supreme Court in Civil Original Jurisdiction in MA. No. 21 of 2022 dated 10.01.2022, the period for pandemic should be excluded for the purpose of all the limitation period to be followed for filing returns/appeals before the authorities. While holding so the Hon'ble Supreme Court held as under: - “5. Taking into consideration the arguments advanced by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it 3 M.A.No. 103/MUM/2022 M/s. Pooja Hardware Pvt. Ltd., appropriate to dispose of the M.A. No. 21 of 2022 with the following directions: I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022. III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply. IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.” 4. As per the above decision of the Hon'ble Supreme Court by excluding the period of pandemic i.e. from 15.03.2020 to till 28.02.2022 if there is any period of remaining limitation period should be extended from 01.03.2022. In the given case the order was passed on 28.10.2019 the Revenue should have filed the Miscellaneous Application before 30 th April, 2020 since the pandemic period commenced from 15.03.2020, in between from the order passed to the start of the pandemic, the 4 M.A.No. 103/MUM/2022 M/s. Pooja Hardware Pvt. Ltd., revenue has lost 4½ months from 1 st November, 2019 to 15 th March, 2022. The revenue should have filed the appeal within 45 days i.e. subsequent to 01.03.2022. Therefore, the Revenue should have filed the Miscellaneous Application on or before 14.04.2022. However, we observe that the revenue has filed the Miscellaneous Application on 10.05.2022. Therefore, the Miscellaneous Application filed by the revenue is beyond period of limitation. Hence, the Miscellaneous Application filed by the revenue is time barred and ITAT has no power to condone the delay beyond the limitation period. Therefore, the Miscellaneous Application filed by the revenue is accordingly, dismissed and further, Revenue has not filed any petition for condonation of delay. 5. In the result, Miscellaneous Application filed by the Revenue is dismissed. Order pronounced in the open court on 21.07.2022. Sd/- Sd/- (PAVAN KUMAR GADALE) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 21/07/2022 Giridhar, Sr.PS 5 M.A.No. 103/MUM/2022 M/s. Pooja Hardware Pvt. Ltd., Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER (Asstt. Registrar) ITAT, Mum