Pradeep Kumar Jindal, New Delhi V. ACIT, New Delhi

MA 118/DEL/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0514 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-12-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 26-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHAILESH KUMAR
• Keywords: Opportunity of being heard; Period of limitation; Retrospective amendment; Right to appeal; Time period of passing order
• Section: 191; 254(2)

Judgement Text

1 M.A NO. 118/DEL/2018 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: FRIDAY NEW DELHI BEFORE SH. R. K. PANDA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER MA NO. 118/DEL/2018 IN ( I.T.A. NO. 3844/DEL/2013 (A.Y 2008-09) SH. PRADEEP KUMAR JINDAL F 3/12, MODAL TOWN NEW DELHI (APPLICANT) VS ACIT CIRCLE 29(1) NEW DELHI (RESPONDENT) APPLICANT BY SH. PIYUSH KAUSHIK, ADV RESPONDENT BY SH. SHAILESH KUMAR, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS MISC. APPLICATION IS FILED BY THE ASSESSEE IN RESPECT OF ORDER DATED 07.02.2018 PASSED IN M.A. NO. 174/DEL/2017 IN ITA NO. 3844/DEL/2013 FOR A.Y. 2008-09. 2. THE LD. AR SUBMITTED THAT THE COUNSEL OF THE ASSESSEE ATTENDED THE SAID CASE ON 02.02.2018 AND REQUESTED FOR RECALLING OF THE IMPUGNED EX-PARTE ORDER DATED 10.12.2015 AND THE TRIBUNAL WAS PLEASED TO RECALL THE ORDER AND DATE OF HEARING WAS GIVEN ON 04.04.2018 TO ARGUE THE CASE ON MERITS. BUT THE LD. AR SUBMITTED THAT THE ASSESSEE WAS SURPRISED TO RECEIVE THE SAID ORDER DATED 07.02.2018 WHEREIN THE ASSESSEES RECALLING HAS BEEN DISMISSED BY THE TRIBUNAL. THE LD. AR HAS FILED THE AFFIDAVIT OF SH. VIVEK AGARWAL, CA OF THE ASSESSEE. THE LD. AR SUBMITTED THAT THE OBSERVATION MADE BY THE TRIBUNAL IN DATE OF HEARING 27.11.2020 DATE OF PRONOUNCEMENT 23.12.2020 2 M.A NO. 118/DEL/2018 PARA 2.2 AND 2.3 WERE NOT RAISED DURING THE COURSE OF HEARING ON 02.02.2018. 2.1 THE LD. AR REFERRING TO WRITTEN SUBMISSIONS FILED BY THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO THE SAME WHICH EXPLAINS THE REASONS FOR FILING OF THIS MISC. APPLICATION AND WHICH READS AS UNDER: 1. BACKGROUND FACTS: 1.1 APPELLANT /ASSESSEES APPEAL FOR AY 2008-09 IN ITA NO. 3844/DEL/13 WAS DISMISSED BY THE ITAT EX PARTE AND IN LIMINE I.E. WITHOUT ANY FINDING ON MERITS VIDE ITS ORDER DATED 10/12/15. THEREAFTER A MISCELLANEOUS APPLICATION (MA) WAS FILED ON 04/03/17 FOR RESTORING THE APPEAL FOLLOWED BY AN AMENDMENT OF SAID APPLICATION ON 04/08/17. THE SAID MA WAS REGISTERED AS MA NO. 174/DEL/17; 1.2 THE SAID MA WAS DISPOSED BY ITAT VIDE ORDER DATED 07/02/18 WHEREBY THE MA OF APPELLANT / ASSESSEE WAS DISMISSED AND THE APPEAL OF ASSESSEE WAS RESTORED FOR ADJUDICATION & FINDINGS ON MERITS. THE ITAT VIDE ITS SAID ORDER DATED 07/02/18 HELD THAT MA FILED BY ASSESSEE IS BEYOND THE PERIOD OF LIMITATION. THE ITAT IN ITS DECISION RELIED UPON THE PROVISIONS OF FINANCE ACT, 2016 WHICH WITH EFFECT FROM 01/06/2016 PROVIDE A REDUCED PERIOD OF 6 MONTHS FOR RECTIFYING A MISTAKE U/S 254(2); 1.3 AGAINST THE ORDER OF ITAT IN MA NO. 174/DEL/17 ASSESSEE HAS FILED THE CAPTIONED MA REGISTERED AS MA NO. 118/DEL/18. 2. ASSESSEES SUBMISSIONS: IT IS RESPECTFULLY SUBMITTED THAT THE FOLLOWING OSTENSIBLE MISTAKES APPARENT FROM RECORD REQUIRE DUE RECTIFICATION WHEREBY THE ORDER OF ITAT DISMISSING APPEAL OF ASSESSEE EX PARTE AND IN LIMINE BE RECALLED FOR HEARING AND DISPOSAL ON MERITS: 2.1 DISMISSAL OF ASSESSEES APPEAL EX PARTE AND IN LIMINE IS CONTRARY TO THE PROVISIONS OF RULE 24 OF ITAT RULES WHICH CLEARLY PROVIDE THAT IN THE EVENT OF DEFAULT BY THE APPELLANT THE MATTER BE DECIDED ON MERITS AFTER HEARING THE RESPONDENT. THIS POSITION IS WELL SETTLED CLEARLY EMANATING FROM THE PROVISIONS 3 M.A NO. 118/DEL/2018 OF AFORESAID STATUTORY RULES AND ALSO SUPPORTED FROM THE FOLLOWING DIRECT DECISIONS ON THE SUBJECT: I) DECISION OF FULL BENCH OF ITAT IN THE CASE OF PARTHA MITRA VS. ITO 75 TAXMANN.COM 118; II) DECISION OF DELHI HIGH COURT IN THE CASE OF GOLDEN TIMES SERVICES P. LTD. VS. DCIT (2020) 422 ITR 102 (DEL.); III) DECISION OF MADRAS HIGH COURT IN THE CASE OF SMT. RITHA SABAPATHY VS. DCIT 416 ITR 191 (MAD). 2.2 THE AMENDMENT IN SECTION 254(2) W.E.F. 01/06/16 AS RELIED UPON THE ITAT IN ITS ORDER DATED 07/02/18 TO DISMISS THE MA OF ASSESSEE AS BEING BARRED BY LIMITATION APPLIES ONLY TO ORDERS PASSED ON AND FROM THE SAID DATED AND WITH RESPECT TO ORDERS PASSED PRIOR TO THE SAID DATE OF 01/06/16 THE OLD PERIOD OF LIMITATION OF 4 YEARS WILL APPLY. THIS HAS BEEN CLEARLY HELD BY THE CO- ORDINATE BENCH OF ITAT ITSELF VIDE ITS DECISION IN THE CASE OF GILFORD & PARTNERS LTD. VS. ADDITIONAL DIRECTOR INVESTIGATION DATED 02/02/28 REPORTED IN (2018) 90 TAXMANN.COM 316. THE CO-ORDINATE BENCH OF ITAT VIDE THIS DECISION HELD THAT MISCELLANEOUS APPLICATION (MA) FILED AFTER AMENDMENT IN SECTION 254(2) INSERTED BY FINANCE ACT 2016 W.E.F. 01/06/16 WILL CONTINUE TO BE GOVERNED BY LAW OF LIMITATION LAID DOWN ON THE DATE WHEN ORDER AGAINST WHICH APPLICATION IS SOUGHT TO BE FILED WAS PASSED AND NOT AS PER LAW APPLICABLE W.E.F. 01/10/16. TO SIMILAR EFFECT IT HAS BEEN HELD IN THE DECISION OF MP HIGH COURT IN THE CASE OF DISTRICT CENTRAL CO-OPERATIVE BANCK VS. UNION OF INDIA 398 ITR 161 (MP). COPY OF THIS DECISION IS ENCLOSED IN THE ACCOMPANYING PAPER BOOK. OPERATIVE PORTION FROM THE SAID DECISION VIDE PARAS 10 & 11 ARE QUOTED HEREUNDER FOR READY REFERENCE: 10. THE HONBLE M.P. HIGH COURT IN WRIT PETITION NO. 4144/2017 IN THE CASE OF DISTRICT CENTRAL CO-OP. BANK LTD. V. UNION OF INDIA (2017) 86 TAXMANN.COM 176/251 TAXMAN 122 VIDE ITS JUDGMENT DATED 09 TH OCTOBER, 2017 HAD TO DEAL WITH AN IDENTICAL CASE SUCH AS THE ASSESSEE. THE HONBLE COURT RELIED ON THE DECISION OF THE APEX COURT IN THE CASE OF M.P. STEEL CORPN. V. COMMISSIONER OF CENTRAL EXCISE [2015] 7 SCC 58 WHEREIN IT WAS HELD THAT 4 M.A NO. 118/DEL/2018 THOUGH PERIODS OF LIMITATION, BEING PROCEDURAL LAW, ARE TO BE APPLIED RETROSPECTIVELY, YET IF A SHORTER PERIOD OF LIMITATION IS PROVIDED BY A LATER AMENDMENT TO A STATUTE, SUCH PERIOD WOULD RENDER THE VESTED RIGHT OF ACTION CONTAINED IN THE STATUTE NUGATORY AS SUCH RIGHT OF ACTION WOULD NOW BECOME TIME BARRED UNDER THE AMENDED PROVISION. THEREFORE A STATUTE WHICH WHILE PROCEDURAL IN ITS CHARACTER, IF IT AFFECTS VESTED RIGHTS ADVERSELY IT HAS TO BE CONSTRUED AS PROSPECTIVE. FOLLOWING THE AFORESAID VIEW, THE HONBLE M.P. HIGH COURT HELD AS FOLLOWS: 08. KEEPING IN VIEW THE JUDGMENT REFERRED BY THEIR LORDSHIPS IN THE AFORESAID CASE AND THE JUDGMENT DELIVERED BY THEIR LORDSHIPS IN THE M.P. STEEL CORPORATION (SUPRA), IN THE PRESENT CASE ALSO THE NEW LAW OF LIMITATION PROVIDING A SHORTER PERIOD CANNOT CERTAINLY EXTINGUISH A VESTED RIGHT OF ACTION. 09. THE AMENDMENT HAS BEEN MADE EFFECTIVE VIRTUALLY IN CASE OF ASSESSEE WITH RETROSPECTIVE EFFECT THOUGH THE AMENDMENT DOES NOT SHOW THAT IT IS APPLICABLE WITH RETROSPECTIVE EFFECT, HOWEVER, THE EXISTING RIGHT HAS BEEN EXTINGUISHED WITH RETROSPECTIVE EFFECT IN CASE OF THE ASSESSEE. 10. IN THE CONSIDERED OPINION OF THIS COURT, THE LEGISLATURE SHOULD HAVE GRANTED SOME TIME TO THE ASSESSEES WHO COULD HAVE FILED AN APPEAL WITHIN A PERIOD OF FOUR YEARS AND THE SAME HAS NOT BEEN DONE TILL THE AMENDMENT CAME INTO FORCE EXTINGUISHABLE THE RIGHT TO FILE AN APPEAL. 11. IN THE CONSIDERED OPINION OF THIS COURT, APPLICATION PREFERRED BY THE ASSESSEE SHOULD NOT HAVE BEEN DISMISSED BY THE TRIBUNAL ON ACCOUNT OF THE AMENDMENT WHICH HAS REDUCED THE PERIOD OF LIMITATION OF FOUR YEARS TO SIX MONTHS. 12-RESULTANTLY, THE IMPUGNED ORDER PASSED BY THE RESPONDENT ON 23/12/2016 IS HEREBY QUASHED AND THE WRIT PETITION STANDS ALLOWED. THE INCOME TAX APPELLATE TRIBUNAL IS DIRECTED TO DECIDE THE APPLICATION PREFERRED UNDER SECTION 254(2) ON MERITS WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF RECEIPT OF CERTIFIED COPY OF THIS ORDER. THE PARTIES SHALL APPEAR BEFORE THE TRIBUNAL ON 30 TH OF OCTOBER, 2017. 11. FOLLOWING THE AFORESAID DECISION, WE HAVE TO HOLD THAT THE PRESENT MA THOUGH FILED AFTER 1.6.2016 WILL CONTINUE TO BE GOVERNED BY THE LAW OF 5 M.A NO. 118/DEL/2018 LIMITATION LAID DOWN UNDER SECTION 254(2) ON THE DATE WHEN THE ORDER AGAINST WHICH THE MA IS SOUGHT TO BE FILED WAS PASSED AND NOT LAW AS PER THE LAW AS AMENDED BY THE AMENDMENT W.E.F. 1.6.2016. THE MA THEREFORE HAS TO BE CONSTRUED AS ONE FILED WITHIN THE PERIOD OF LIMITATION AND HAS TO BE ACCEPTED AS VALIDLY PRESENTED WITHIN THE PERIOD OF LIMITATION. THUS, IN VIEW OF THE FOREGOING FACTS AND SUBMISSIONS AND LEGAL POSITIONS IT IS RESPECTFULLY SUBMITTED THAT THE ORDER OF ITAT DISMISSING APPEAL OF ASSESSEE EX PARTE AND IN LIMINE BE RECALLED FOR HEARING AND DISPOSAL ON MERITS. 2.2 THE LD. AR REFERRING TO THE ABOVE SUBMITTED THAT THE SAME IS SELF EXPLANATORY AND THEREFORE, THE ORDER OF THE TRIBUNAL SHOULD BE RECALLED. THUS, THE LD. AR SUBMITTED THAT THE MISTAKE WHICH IS APPARENT FROM RECORD MAY BE RECTIFIED AND THE APPEAL MAY BE FIXED FOR HEARING ON MERIT. 3. THE LD. DR VEHEMENTLY OPPOSED THE MISC. APPLICATION STATING THAT THE PRESENT MISC. APPLICATION IS FILED AGAINST THE ORDER PASSED IN THE MISC. APPLICATION ITSELF. THE LD. DR SUBMITTED THAT THE ORDER DATED 07.02.2018 WAS PASSED ON MERIT AS THERE WAS DELAY IN FILING THE MISC. APPLICATION AND WAS RIGHTLY DISMISSED. THE LD. DR HAND STRONGLY OBJECTED TO THE M.A. FILED BY THE ASSESSEE AGAINST THE DISMISSAL OF THE M.A. NO. 174/DEL/2017. THE LD. DR SUBMITTED THAT THERE CANNOT BE ANY MISC. APPLICATION AGAINST THE ORDER OF THE MISC. APPLICATION. THE LD. DR SUBMITTED THAT THE MA FILED BY THE ASSESSEE IS AGAINST THE STATUTE AND THEREAFTER THE SAME MAY BE DISMISSED. 4. THE LD. AR SUBMITTED THAT AS PER SUB-SECTION (1) OF SECTION 254 OF THE INCOME TAX ACT, 1961, ANY ORDER PASSED BY THE TRIBUNAL CAN BE RECTIFIED IF THERE IS MISTAKE APPARENT ON RECORD. THE LD. AR FURTHER SUBMITTED THAT THE TRIBUNAL VIDE ORDER DATED 07.02.2018 HAS GIVEN A FINDING THAT THE SAID MISC. APPLICATION NO. 174/DEL/2017 WAS FILED AFTER SIX MONTHS PERIOD AS PER THE AMENDMENT BROUGHT INTO THE STATUTE BY 01.06.2016. THEREFORE, THE SAID MISC. APPLICATION WAS DISMISSED AS TIME-BARRED. TO THIS, THE LD. AR SUBMITTED THAT 6 M.A NO. 118/DEL/2018 THE ORDER IN THE APPEAL BEING ITA NO. 3844/DEL/2013 WAS PASSED ON 10.12.2015 WHICH IS PRIOR TO THE EFFECTIVE DATE OF THE AMENDMENT PASSED BY THE PARLIAMENT I.E. 01.06.2016. HENCE, THIS IS AN APPARENT MISTAKE ON PART OF THE TRIBUNAL TO DISMISS THE MISC. APPLICATION AS TIME-BARRED. THEREFORE, THE LD. AR PRAYED THAT THE ORDER DATED 07.02.2018 BE RECALLED AND THE APPEAL BEING ITA NO. 3844/DEL/2013 BE RESTORED FOR HEARING ON MERIT AS THE SAME WAS DISMISSED FOR NON-PROSECUTION. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE PRESENT MISC. APPLICATION IS FILED IN RESPECT OF THE ORDER DATED 07.02.2018 PASSED IN MISC. APPLICATION NO. 174/DEL/2017 WHICH WAS DISMISSED AS TIME-BARRED AFTER GIVING DETAILED REASONING THEREAFTER. WE ARE AWARE THAT THE APPEAL WAS DECIDED EX-PARTE DUE TO NON-APPEARANCE OF THE ASSESSEE AND THE TRIBUNAL HAS ALSO NOT DECIDED THE APPEAL ON MERIT. WHEN THE ASSESSEE FILED THE MA, THE TRIBUNAL DISMISSED THE SAME AS BARRED BY LIMITATION. THE ARGUMENTS AS ADVANCED BY THE LD. AR NOW REGARDING THE MAINTAINABILITY OF MISC. APPLICATION WERE NOT ARGUED AT THAT TIME WHICH APPEARS FROM THE MA NO. 174/DEL/2017 ORDER DATED 07.02.2018. SINCE THE PRESENT MISC. APPLICATION HAS BEEN FILED AGAINST THE DISMISSAL OF THE MA NO. 174/2017 IN ITA NO. 3844/DE/2013 VIDE ORDER DATED 07.02.2018 FOR A.Y. 2008-09, THE SAME IN OUR OPINION IS NOT MAINTAINABLE AS THE STATUTE DOES NOT PROVIDE THE ASSESSEE TO FILE AN MISC. APPLICATION AGAINST THE ORDER OF THE MISC. APPLICATION. SECTION 254(1) AND (2) OF THE INCOME TAX ACT, 1961 READS AS UNDER: 254. ORDERS OF APPELLATE TRIBUNAL (1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREON AS IT THINKS FIT. (2) 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 AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER: 7 M.A NO. 118/DEL/2018 PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREASING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS. SUB- SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. A PERUSAL OF THE ABOVE PROVISIONS SHOW THAT THE TRIBUNAL MAY AFTER GIVING OPPORTUNITY TO BOTH THE PARTIES TO THE APPEAL RECTIFY THE ORDER, BUT THE ORDER DATED 07.02.2018 WAS PASSED IN MISC. APPLICATION AND THE SAME IS A SPEAKING ORDER WHICH CANNOT BE REVIEWED BY US AT THIS JUNCTURE. THE CASE LAWS SUBMITTED BY THE LD. AR CANNOT BE DEALT IN THE PRESENT MISC. APPLICATION AS THE SAME ARE RELATED TO THE MERIT OF LIMITATION PERIOD OF FILING OF EARLIER MISC. APPLICATION AND NOT THE PRESENT MISC. APPLICATION AND THE EARLIER MISC. APPLICATION IS ALREADY DECIDED WITH THE DETAILED ORDER REGARDING THE ISSUE OF LIMITATION WHICH WE CANNOT REVIEW IN THE PRESENT MISC. APPLICATION. THE PREPOSITION OF THE LD. AR AMOUNTS TO REVIEW OF ITS OWN ORDER DATED 07.02.2018 BY THE TRIBUNAL WHICH IS NOT PERMISSIBLE IN LAW, THE REMEDY IN OUR OPINION LIES ELSEWHERE, BUT NOT BEFORE THE TRIBUNAL AT THIS JUNCTURE. HENCE, THE PRESENT MISC. APPLICATION FILED BY THE ASSESSEE IS DISMISSED. 6. IN RESULT, MISC. APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF DECEMBER, 2020 SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 23/12/2020 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 8 M.A NO. 118/DEL/2018 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 27.11.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 27.11.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 23.12.2020 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 23.12.2020 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 23.12.2020 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 23.12.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 23.12.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 23.12.2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER