Anupam Kumar Didwania, New Delhi V. DCIT, CHENNAI

MA 119/CHNY/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0780 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-08-2013
• Assessment Year: 1995-1996
• Appeal Filed On: 08-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHAJI P JACOB IRS
• Assessee Lawyers: N DEVANATHAN
• Keywords: Period of limitation; Time period of passing order; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENT AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER M.P. NO.119 OF 2013 IN ITA NO.2138(MDS)/2006 ASSESSMENT YEAR : 1995-96 SHRI ANUPAM KUMAR DIDWANIA, A-199, NEW FRIENDS COLONY, NEW-DELHI. PIN 110065. PAN AFVPK0457K. VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE I(3), CHENNAI. (PETITIONER) (RESPONDENT) PETITIONER BY : SHRI N.D EVANATHAN, ADVOCATE RESPONDENT BY : SHRI SHAJI P JACOB, IRS, ADDL.CIT DATE OF HEARING : 23 RD AUGUST, 2013 DATE OF PRONOUNCEMENT : 23 RD AUGUST, 2013 O R D E R PER DR.O.K.NARAYANAN, VICE-PRESIDENT THIS MISCELLANEOUS PETITION IS FILED BY THE ASSES SEE. THIS PETITION IS IN THE NATURE OF RESTORATION PETITION. THE CONNECTED APPEAL IN ITA NO.2138(MDS)/2006 FILED BY THE ASSESS EE WAS DISMISSED BY THE TRIBUNAL THROUGH ITS EX-PARTE ORDE R DATED 2 ND NOVEMBER, 2007. THE TRIBUNAL DISMISSED THE APPEAL EX-PARTE - - M.P. NO.119 OF 2013 2 ON THE GROUND THAT THE APPEAL WAS NOT PROSECUTED WH EN CALLED UPON FOR HEARING. WHILE DISMISSING THE APPEAL, THE TRIBUNAL HAS MADE IT CLEAR THAT IF THE ASSESSEE IS ABLE TO SHOW SUFFICIENT REASON FOR NON APPEARANCE, HE CAN MOVE THE TRIBUNAL FOR RECALLING ITS ORDER. 2. THIS RESTORATION PETITION IS FILED IN THE CONTE XT STATED ABOVE. THE ASSESSEE-PETITIONER HAS STATED T HE REASONS FOR NON APPEARANCE IN THE FOLLOWING MANNER:- I FILED APPEAL AGAINST THE ORDER OF THE CIT(A), CHENNAI BEFORE THE ITAT, DELHI BENCH SINCE ALL MY ASSESSMENTS WERE TRANSFERRED TO DELHI. HOWEVER THE REGISTRY OF ITAT, DELHI, SUO MOTU, TRANSFERRED MY CASE TO CHENNAI BENCH OF ITAT WITHOUT MY CONSENT OR INTIMATION OF FORWARDING THE APPEAL TO CHENNAI. HENCE I WAS IN DARK ABOUT THE PROGRESS OF MY CASE. I, AFTER ENQUIRY IN THE OFFICE OF THE REGISTRY, DELHI IN THE MONTH OF MAY, 2013 REGARDING NON RECEIPT OF HEARING NOTICE ON THE PENDING CASE, - - M.P. NO.119 OF 2013 3 CAME TO KNOW THAT THE APPEAL PAPERS WERE TRANSFERRED TO CHENNAI BENCH, ITAT. I TOOK THE HELP OF THE AUDITOR AT CHENNAI TO FIND O UT THE FACTUAL POSITION. MY AUDITOR INSPECTED THE RECORDS ON 3-6-2013 TO FIN D OUT THE FATE OF THE APPEAL AND VERIFIED THE FACTUAL POSITION AND FOUND THAT THE HEARING NOTICE DATED 1-11-2007 WAS RECEIVED BY ONE MR. RATAN, WHO IS A STRANGER FOR ME AND HE IS NO WAY CONNECTED WITH ME, AND THE EX PARTE ORDER WAS PASSED ON 2-11-2007 BY THE HONBLE ITAT AND THERE IS NO ACKNOWLEDGEMENT OF THE ORDER HAVING BEEN SERVED TO THE PETITIONER HEREIN. MY AUDITOR APPLIED FOR A CERTIFIED COPY AND ARRANGED TO FILE THIS PETITION. I HEREBY AFFIRM THAT THERE IS EXISTS OF 2 FRIENDS COLONY AND ONE NEW FRIENDS COLONY IN NEW DELHI WITH VARYING PIN CODES 110065/110025. IN VIEW OF REORGANIZATION, THERE WAS A CHANGE IN MY PIN CODE FROM 110065 TO 110025 AND THIS WOULD HAVE CAUSED - - M.P. NO.119 OF 2013 4 NON-RECEIPT OF NOTICE AND THE ORDER OF THE HONBLE ITAT. I SUBMIT THAT IT IS WELL SETTLED THAT THE RULES AND PROCEDURE OR TECHNICALITIES OF LAW CANNOT STAND IN THE WAY OF ADMINISTRATION OF JUSTICE AND THAT IS TH E REASON THE HONBLE ITAT HAS GIVEN THE LIBERTY TO TH E PETITIONER TO FILE PETITION FOR RECALLING THE IMPUG NED ORDER. 3. THE APPEAL WAS DISMISSED BY THE TRIBUNAL THROUG H ITS ORDER DATED 2 ND NOVEMBER, 2007. THIS MISCELLANEOUS PETITION IS FILED ON 8-7-2013. THE LIMITATION PERIOD FOR FI LING A MISCELLANEOUS PETITION UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961, READ WITH RULE 24 OF INCOME-TAX APPELLAT E TRIBUNAL RULES, 1963, IS FOUR YEARS. THE SAID PERIOD OF FOU R YEARS HAS EXPIRED IN THE PRESENT CASE ON 1 ST NOVEMBER, 2011. ACCORDINGLY, THERE IS A DELAY OF ONE YEAR AND EIGHT MONTHS IN FI LING THIS PETITION. 4. THE REASONS FOR THE DELAY AS STATED BY THE ASSESSEE ARE THE SAME REASONS STATED BY HIM IN THE PETITION FILED - - M.P. NO.119 OF 2013 5 FOR THE RESTORATION OF THE APPEAL. ACCORDING TO HI M, WHEN THE APPEAL FILE WAS TRANSFERRED FROM DELHI TO MADRAS, W ITHOUT HIS KNOWLEDGE, HE DID NOT RECEIVE THE TRIBUNAL ORDER IN TIME AND ALL THE FACTS BECAME CLEAR TO HIM ONLY ON 3-6-2013 WHEN THE MATTER WAS PERSONALLY ENQUIRED WITH THE REGISTRY AT CHENNA I. 5. THE INCOME-TAX APPELLATE TRIBUNAL, NAGPUR SPECI AL BENCH, IN THE CASE OF BHILAI ENGINEERING CORPORATIO N LTD. VS. DEPUTY COMMISSIONER OF INCOME-TAX, 81 ITD 282 (NAG) (SB), HAD CONSIDERED A SIMILAR CASE. AFTER CONSIDERING A LL THE ASPECTS OF THE LAW STATED REGARDING CONDONATION OF DELAY WI TH SPECIAL REFERENCE TO RECTIFICATION PETITION, THE SPECIAL BE NCH HELD THAT THE TIME LIMIT OF FOUR YEARS PRESCRIBED IN SECTION 254( 2) OF THE ACT IS IN THE CONTEXT OF SUO MOTU RECTIFICATION AND IT HAS NOT MUCH RELEVANCE WHERE RECTIFICATION IS TO BE DONE AT THE INSTANCE OF EITHER OF THE PARTIES; COUNSEL OF THE ASSESSEE HAVI NG ADMITTED IN CLEAR AND UNEQUIVOCAL TERMS THAT THE DELAY IN FILIN G THE APPLICATION WAS ATTRIBUTABLE TO HIM ONLY AND THE AS SESSEE WAS NOT RESPONSIBLE FOR THE DELAY, THE DELAY IS CONDONE D. IN THE PRESENT CASE ALSO WE FIND THAT THERE IS A VALID REA SON FOR CAUSING THE DELAY IN FILING THE PETITION BEFORE THE TRIBUNA L. ORIGINALLY, THE - - M.P. NO.119 OF 2013 6 APPEAL WAS BEFORE THE INCOME-TAX APPELLATE TRIBUNAL , DELHI. THEREAFTER, IT WAS TRANSFERRED TO THE TRIBUNAL AT C HENNAI. THE ASSESSEE WAS NOT AWARE OF THIS. LONG AFTER THE FIL ING OF THE APPEAL, WHEN THE ASSESSEE CONTACTED THE REGISTRY AT DELHI, HE CAME TO KNOW THAT THE APPEAL WAS ALREADY TRANSFERRE D TO THE TRIBUNAL AT CHENNAI. THE NOTICE SENT BY THE REGIST RY DID NOT REACH HIS PROPER ADDRESS IN DELHI. THEREAFTER, THE ASSESSEE MADE ENQUIRIES WITH THE REGISTRY, INCOME-TAX APPELL ATE TRIBUNAL, CHENNAI, AND THEN ONLY HE CAME TO UNDERSTAND THAT T HE APPEAL WAS ALREADY DISPOSED OF EX-PARTE. IN THESE CIRCUMS TANCES, WE FIND THAT THE DELAY WAS CAUSED FOR REASONS BEYOND T HE CONTROL OF THE PETITIONER. ACCORDINGLY, IN THE LIGHT OF THE D ECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE ABOVE CASE, WE CONDONE THE DELAY IN FILING THIS RESTORATION PETITION BEFORE TH E TRIBUNAL. THE DELAY IS CONDONED AND THE PETITION IS ADMITTED FOR HEARING AND ADJUDICATION. 6. NOW, COMING TO THE RESTORATION PETITION, WE FIN D THAT THE REASONS ALREADY STATED BY THE ASSESSEE SUP PORT THE CASE OF THE PETITIONER. ACCORDINGLY, THE EX-PARTE ORDER OF THE TRIBUNAL DATED 2 ND NOVEMBER, 2007 IS RECALLED AND THE APPEAL IS - - M.P. NO.119 OF 2013 7 RESTORED ON THE ROLLS OF THE TRIBUNAL FOR FRESH HEA RING AND DISPOSAL. 7. THE REGISTRY IS DIRECTED TO FIX THE DATE OF HEA RING AND ISSUE THE NOTICE OF HEARING. 8. IN RESULT, THIS PETITION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON FRIDAY, THE 23 RD OF AUGUST, 2013 AT CHENNAI. SD/- SD/- (VIKAS AWASTHY) (DR. O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED, THE 23 RD AUGUST, 2013. V.A.P. COPY TO: 1. PETITIONER 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GF.