M/s Mini Life Sciences Private Limited , Bangalore V. Income Tax Officer Ward-4(1)(3), Bangalore

MA 121/BANG/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1108 (ITAT-BANGALORE)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 17-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V SRINIVASAN
• Keywords: Period of limitation
• Section: 254(2)

Judgement Text

M.P. NO.121/BANG/2020 (ITA NO.264/BANG/2019) M/S. MINII LIFE SCIENCES PVT. LTD., BENGALURU IN THE INCOME TAX APPELLATE TRIBUNAL SMC CBENCH: BANGALORE BEFORE SHRI B. R. BASKARAN, ACCOUNTANT MEMBER M.P. NO.121/BANG/2020 (ARISING OUT OF ITA NO.264/BANG/2019) ASSESSMENT YEAR: 2014-15 M/S. MINII LIFE SCIENCES PRIVATE LIMITED 105/56/41, 2 ND FLOOR, BOB COLONY, PUTTENHALLI, J.P. NAGAR 7 TH PHASE BANGALORE-560 078 PAN NO : AAGCM8715K VS. ITO WARD-4(1)(3) BENGALURU APPELLANT RESPONDENT APPELLANT BY : SHRI V. SRINIVASAN, A.R. RESPONDENT BY : SHRI GANESH R. GHALE, STANDING COUNSEL DATE OF HEARING : 18.12.2020 DATE OF PRONOUNCEMENT : 18.12.2020 O R D E R PERB.R. BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATI ON SEEKING RECALL OF ORDER DATED 16.5.2019 PASSED EX-PARTE BY THE TRIBUNAL IN THE CAPTIONED APPEAL. 2. THE LD. A.R. SUBMITTED THAT THE TRIBUNAL HAD SER VED THE NOTICE OF HEARING BY RPAD TO THE ADDRESS SHOWN IN T HE ORDER OF THE TRIBUNAL. THE FIRST NOTICE SENT ON 2.4.2019 HAS BE EN RETURNED UNSERVED BY THE POSTAL DEPARTMENT. HENCE, A SECOND NOTICE WAS SENT TO THE VERY SAME ADDRESS. SINCE IT DID NOT RE TURN BACK, THE M.P. NO.121/BANG/2020 (ITA NO.264/BANG/2019) M/S. MINII LIFE SCIENCES PVT. LTD., BENGALURU PAGE 2 OF 6 TRIBUNAL HAD HEARD THE APPEAL PRESUMING THAT THE NO TICE HAS BEEN SERVED TO THE ASSESSEE. ACCORDINGLY, BY APPLYING T HE DECISION RENDERED BY TRIBUNAL IN THE CASE OF MULTIPLAN INDIA LIMITED 38 ITD 320 (DELHI) THE TRIBUNAL DISMISSED THE APPEAL OF TH E ASSESSEE. 3. THE LD. A.R. SUBMITTED THAT THE ASSESSEE HAS SHI FTED ITS ADDRESS AND THE NEW ADDRESSES ARE AS UNDER: NEW REGISTERED OFFICE ADDRESS NEW ADMINISTRATIVE OFFICE ADDRESS MINII LIFE SCIENCES PVT. LTD. 105/56/41, 2 ND FLOOR BOB COLONY, PUTTENAHALLI J.P. NAGAR, 7 TH PHASE BANGALORE-560 078 EMAIL: [e-mail] MOBILE: [phone] MINII LIFE SCIENCES PRIVATE LTD. NO.16-9-820, 2 ND FLOOR RACE COURSE ROAD, MALAKPET HYDERABAD-500 036 EMAIL: [e-mail] MOBILE:[phone]. THE LD. A.R. SUBMITTED THAT THE ASSESSEE WAS NOT AWARE OF THE HEARING AND ALSO THE ORDER PASSED BY THE TRIBUN AL. ONLY WHEN THE ASSESSEE RECEIVED THE PENALTY ORDER DATED 31.12 .2019, THE ASSESSEE CAME TO KNOW OF THE FACT THAT THE TRIBUNAL HAS DISMISSED THE APPEAL FILED BY IT. THE ASSESSEE RECEIVED THE PENALTY ORDER ON 4.1.2020 AND THE MISCELLANEOUS PETITION WAS FILED B Y THE ASSESSEE ON 17.2.2020. ACCORDINGLY, THE LD. A.R. SUBMITTED THAT THE DATE OF RECEIPT OF ORDER OF THE TRIBUNAL SHOULD BE CONSIDER ED AS 4.1.2020. THE LD. A.R. SUBMITTED THAT THE ASSESSEE HAS DOWNLO ADED THE ORDER FROM THE SITE OF ITAT. ACCORDINGLY, THE LD. A.R. S UBMITTED THAT THE MISCELLANEOUS PETITION CANNOT BE CONSIDERED AS BARR ED BY LIMITATION SINCE IT WAS FILED WITHIN THE PRESCRIBED PERIOD FRO M THE DATE ON WHICH ASSESSEE CAME TO KNOW OF THE ORDER PASSED BY THE TRIBUNAL. IN SUPPORT OF THIS PROPOSITION, THE ASSESSEE PLACED HIS RELIANCE ON THE ORDER DATED 29.8.2018 PASSED BY KOLKATA BENCH O F TRIBUNAL IN THE CASE OF M/S. ARATI ENGINEERING & CONSTRUCTION C OMPANY VS. ITO (MA NO.82/KOL/2018 DATED 29.8.2018). THE LD. A .R. SUBMITTED M.P. NO.121/BANG/2020 (ITA NO.264/BANG/2019) M/S. MINII LIFE SCIENCES PVT. LTD., BENGALURU PAGE 3 OF 6 THAT, FOR THE REASONS STATED EARLIER, THERE WAS SUF FICIENT CAUSE FOR THE ASSESSEE IN NOT APPEARING BEFORE THE TRIBUNAL D URING THE COURSE OF HEARING OF APPEAL. ACCORDINGLY, HE PRAYED FOR R ECALL OF THE EX- PARTE ORDER PASSED BY THE TRIBUNAL. 5. I HEARD LD. D.R., WHO SUBMITTED THAT THERE WAS N O SUFFICIENT CAUSE FOR THE ASSESSEE IN NOT APPEARING BEFORE THE TRIBUNAL ON THE DATE OF HEARING OF APPEAL. HE FURTHER SUBMITTED TH AT THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS BAR RED BY LIMITATION ALSO. ACCORDINGLY, HE OPPOSED THE PETITION FILED B Y THE ASSESSEE. 6. I HEARD THE PARTIES AND PERUSED THE RECORD. I N OTICE THAT THE KOLKATTA BENCH OF TRIBUNAL HAS CONSIDERED AN IDENTI CAL ISSUE IN THE CASE OF M/A ARATI ENGINEERING & CONSTRUCTION CO (SU PRA), WHEREIN IT HAS FOLLOWED THE DECISION RENDERED BY HONBLE DELHI HIGH COURT IN THE CASE OF OM PRAKASH SANGWAN (ITA 625/2018 & CM A PPL 21436/2018, ITA 626/2018 & CM APPL 21437/2018) AND RECALLED THE EX-PARTE ORDER. FOR THE SAKE OF CONVENIENCE, I EXTRACT BELOW THE ORDER PASSED BY KOLKATTA BENCH OF TRIBUNAL IN THE A BOVE SAID CASE:- 4. HEARD BOTH THE PARTIES AND PERUSED THE RECORD. THE ARGUMENTS ON BEHALF OF ASSESSE BEFORE THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF OM PRAKASH SANGWAN WAS THAT, THE PERIOD OF LIMITATION AS PRESCRIBED IN SUB- SECTION 2 OF SECTION 254 OF THE ACT IS APPLICABLE O NLY WHEN THE TRIBUNAL PROCEEDS TO RECTIFY ERROR IN ITS ORDER AND PLACED R ELIANCE ON TWO DECISIONS OF HON'BLE HIGH COURT OF ALLAHABAD AND HIGH COURT O F GUJARAT. THE HON'BLE HIGH COURT OF DELHI WAS PLEASED TO OBSERVE THAT AN AMENDMENT TO SECTION 254(2) OF THE ACT TO CURTAIL THE EXTENDED PERIOD OF FOUR YEARS TO APPROACH TRIBUNAL BY EITHER OF PARITIES FOR A RECTI FICATION. IT IS NOTED ON A CAREFUL READING OF THE DECISION OF HON'BLE HIGH COU RT, THAT NO FINDING WAS ACCORDED REGARDING THE APPLICABILITY OF SUB- SECTION 2 OF SECTION 254 OF THE ACT, BUT, HOWEVER, CONSIDERING THE SUBMISSIONS OF P ARTIES THEREIN, HELD THAT THE TRIBUNAL HAS TO DECIDE THE APPEALS ON MERIT IN TERMS OF RULE 24 OF ITAT'S RULES R/W OTHER PROVISIONS OF THE ACT, FAILI NG WHICH, AMOUNTS EXCEEDING THE JURISDICTION AVAILABLE TO IT UNDER ST ATUTE. THE CONTENTION OF THE LD.AR IS THAT THE LIMITATION AS PROVIDED AS THE ASSESSEE IS NOT BEFORE THIS TRIBUNAL TO RECTIFY ANY ERROR, BUT TO RECALL ANY EX PARTE ORDER WHICH HAS TO M.P. NO.121/BANG/2020 (ITA NO.264/BANG/2019) M/S. MINII LIFE SCIENCES PVT. LTD., BENGALURU PAGE 4 OF 6 BE DECIDED U/RULE 24 OF ITAT RULES 1963 AND FURTHER , SUB- SECTION 2 OF SECTION 254 OF THE ACT DOES NOT APPLY TO THE PRESENT CASE AS A SSESSEE DID NOT RECEIVE ANY COPY OF THE EX PARTE ORDER FROM THE O/O THE REGISTRY, ITAT, KOLKATA. THE ASSESSEE ON ITS OWN INTEREST CAM E TO KNOW ABOUT SUCH ORDER AND OBTAINED THE CERTIFIED COPY AND IMMEDIATE LY FILED THIS PRESENT MISC. APPLICATION. IN OUR OPINION, THAT THE ARGUMEN TS OF LD.AR AND FACTS AND CIRCUMSTANCES IN THE CASE OF OM PRAKASH SANGWAN OF HON'BLE HIGH COURT OF DELHI SUPRA ARE SIMILAR AND IDENTICAL. THE RELEVANT PORTION OF WHICH IS REPRODUCED HEREIN BELOW:- ' LEARNED COUNSEL FOR THE APPELLANT SOUGHT TO IMPRE SS UPON THE COURT THAT THE PERIOD MENTIONED IN SECTION 254(2) O F THE ACT ONLY APPLIED WHEN THE TRIBUNAL NOTICES THE ERROR AND DEC IDES TO PROCEED AHEAD TO RECTIFY IT AND PER SE DOES NOT INDICATE AN Y LIMITATION WITHIN WHICH THE AGGRIEVED PARTY (ASSESSEE OR REVENUE) CA N APPROACH IT. HE RELIED UPON THE JUDGMENTS OF THE ALLAHABAD HIGH COURT TITLED VIJAY KUMAR RUIA V. COMMISSIONER OF INCOME TAX [2011] 15 TAXMANN.COM (ALLAHABAD) AND GUJARAT HIGH COURT TITL ED LILADHAR T KHUSHLANI VS. COMMISSIONER OF CUSTOMS TAX APPEAL NO .915 OF2016 DELIVERED ON 25.01.2017 FOR THIS PURPOSE. THIS COUR T IS OF THE OPINION THAT THOSE JUDGMENTS CANNOT AFFORD THE APPE LLANT ANY COMFORT. SECTION 254(2) OF THE ACT WAS ADVISABLY AM ENDED TO CURTAIL EXTENDED PERIOD OF FOUR YEARS WHICH HAD BEEN PROVID ED TO EITHER CLASS OF LITIGANTS TO APPROACH THE ITAT FOR A RECTI FICATION. IN THIS CASE, THE COURT HAS CONSIDERED THE SUBMISSIONS OF T HE PARTIES. IN THIS CASE, THE ITAT DID NOT DECIDE THE APPEAL ON TH E MERITS AS IT IS MANDATED TO BUT RATHER REJECTED FOR NON-PROSECUTION . RULE 24 OF THE INCOME TAX APPELLATE TRIBUNAL'S RULE S AND THE OTHER PROVISIONS OF BOTH THE INCOME TAX ACT AND RULES INDICATE THAT THE ITAT HAS TO DECIDE THE APPEALS OR MATTERS BEFORE IT ON THE MERITS. IN THESE CIRCUMSTANCES, THE ITAT'S FAILURE TO DO SO, I MPLIES THAT IT EXCEEDED ITS JURISDICTION AND INSTEAD OF DECIDING O N THE MERITS, REJECTED THE APPEAL MERELY FOR NON-PROSECUTION. IN THE GIVEN CIRCUMSTANCES AND KEEPING IN VIEW THE FACT THAT RUL E 25 DOES NOT STIPULATE ANY PERIOD OF LIMITATION WITHIN WHICH THE AGGRIEVED PARTY CAN APPROACH THE TRIBUNAL, IT IS OPEN TO THE APPELL ANT TO APPROACH THE TRIBUNAL WITH A SUITABLE APPLICATION FOR RESTOR ATION OF THE APPEALS; IN SUCH EVENT, THE APPEALS COULD BE CONSID ERED ON THEIR MERITS AND DECIDED IN ACCORDANCE WITH LAW AFTER HEA RING BOTH THE PARTIES, PROVIDED, THE APPLICATION IS PRESENTED BEF ORE THE ITAT WITHIN THIRTY DAYS FROM TODAY.' RESPECTFULLY FOLLOWING THE ABOVE, TAKING INTO CONSI DERATIONS THE FACTS AND CIRCUMSTANCES OF THE CASE, SUBMISSIONS OF THE LD. A R AND IN THE INTEREST OF JUSTICE, WE DEEM IT FIT AND PROPER TO RECALL THE SA ID EX PARTE ORDER DT 17-03- M.P. NO.121/BANG/2020 (ITA NO.264/BANG/2019) M/S. MINII LIFE SCIENCES PVT. LTD., BENGALURU PAGE 5 OF 6 2017. REGISTRY IS DIRECTED TO FIX THE CASE AFRESH B Y ISSUING NOTICES TO BOTH THE PARTIES. 7. IN THE ABOVE SAID CASE, THE EX-PARTE ORDER WA S PASSED BY THE TRIBUNAL ON 17.03.2017. ACCORDING TO THE ASSESSEE, IT COULD OBTAIN CERTIFIED COPY ONLY ON 15.02.2018 AND THE MP WAS FI LED IMMEDIATELY. THE REGISTRY NOTED THAT THE MISCELLANEOUS PETITION IS BARRED BY LIMITATION BY 223 DAYS. UNDER THESE SET OF FACTS, ABOVE ORDER CAME TO BE PASSED BY THE TRIBUNAL. 8. IN THE INSTANT CASE ALSO, THE TRIBUNAL HAD DI SMISSED THE APPEAL OF THE ASSESSEE EX-PARTE FOR NON-PROSECUTION. THE ASSESSEE HAS ALSO STATED THE REASONS FOR THE DELAY IN FILING THIS MIS CELLANEOUS PETITION. THE ORDER PASSED BY THE TRIBUNAL CONTAINS OLD ADDRE SS ONLY. HENCE I AM OF THE VIEW THAT THERE IS MERIT IN THE SUBMISS IONS MADE BY THE ASSESSEE. FACTS OF BOTH THE CASES BEING IDENTICAL, FOLLOWING THE ABOVE SAID DECISION OF KOLKATA BENCH OF TRIBUNAL, I DEEM IT FIT TO RECALL THE IMPUGNED EX-PARTE ORDER DATED 16-05-2019 PASSED IN THE HANDS OF THE ASSESSEE. ACCORDINGLY, I RECALL THE S AME AND THE REGISTRY IS DIRECTED TO FIX THE CASE FOR HEARING IN THE DUE COURSE BY ISSUING NOTICES TO BOTH THE PARTIES. 9. IN THE RESULT, THE MISCELLANEOUS APPLICATIO N OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH DEC, 2020 SD/- (B.R. BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED 18 TH DEC, 2020. VG/SPS M.P. NO.121/BANG/2020 (ITA NO.264/BANG/2019) M/S. MINII LIFE SCIENCES PVT. LTD., BENGALURU PAGE 6 OF 6 COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.