Shri Deepak Kothari, Kanpur V. The Asstt. Commissioner of Income Tax, Kanpur

MA 124/LKW/2008

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1870 (ITAT-LUCKNOW)
• Duration Of Justice: 5 year(s) 5 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-04-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 07-03-2014
• Assessment Year: 1996-1997
• Appeal Filed On: 13-10-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P K DEY
• Assessee Lawyers: P K KAPOOR

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER M.A. NO.124 /LKW/20 08 (ARISING OUT OF I.T.A.NO.707/LKW/2005) ASSESSMENT YEAR:96 - 97 SHRI DEEPAK KOTHARI, HUF, KANPUR. PAN:AAAHD4488H VS. A.C.I.T., CENTRAL CIRCLE, KANPUR. (A PPLICANT ) (RESPONDENT) APPLICANT BY SHRI P. K. KAPOOR, C.A. RESPONDENT BY SHRI P. K. DEY, D.R. DATE OF HEARING 07/03/2014 DATE OF PRONOUNCEMENT 1 1 /04/2014 O R D E R PER A. K. GARODIA, A.M. THIS MISC. APPLICATION IS FILED BY THE ASSESSEE POINTING OUT CERTAIN MISTAKES IN THE TRIBUNAL ORDER DATED 21/09/2007. 2. BEFORE DWELLING UPON THE MISTAKES ALLEGED IN THE MISC. APPLICATION AND DECID ING THE SAME ON MERIT, WE FIRST DISCUSS AND DECIDE REGARDING THE TECHNICAL ASPECT AS TO WHETHER A VALID AND PROPER MISC. APPLICATION HAS BEEN FILED BY THE ASSESSEE BEFORE THE EXPIRY OF PRESCRIBED PERIOD I.E. FOUR YEARS FROM THE DATE OF THE TRIBUNAL ORDER. 3. IN THIS REGARD, WE FIND THAT THIS MISC. APPLICATION HAS BEEN FILED ON 13/10/2008. FIRST DEFECT MEMO WAS ISSUED BY THE REGISTRY ON 21/11/2008 [ 2 ] AND IN THE SAME, TWO DEFECTS WERE POINTED OUT BY THE REGISTRY. THE FIRST DEFECT WAS THIS THAT THE MISC. APPLICAT ION RUNNING FROM PAGES 3 TO 22 HAS NOT BEEN SIGNED BY THE ASSESSEE. THE SECOND DEFECT POINTED OUT BY THE REGISTRY WAS THIS THAT IN THE TRIBUNAL ORDER COPY, HUF WORD SHOWN WRONGLY AGAINST THE I.T.A. NO.734/LKW/2005. THE REGISTRY ISSUED TWO REMINDERS THERE AFTER ON 16/01/2009 AND 14/05/2009 BUT THE DEFECTS WERE NOT REMOVED BY THE ASSESSEE . STILL THE MISC. APPLICATION WAS FIXED FOR HEARING FOR THE FIRST TIME ON 28/02/2014 AND ON THE REQUEST OF THE ASSESSEE, THE HEARING WAS ADJOURNED TO 07/03/2014. THEREAFTE R, ON 06/03/2014, THE ASSESSEE HAS FILED A FRESH MISC. APPLICATION UNDER HIS SIGNATURE. THEREAFTER, THE HEARING TOOK PLACE ON 07/03/2014. IN THE COURSE OF HEARING, THE LEARNED A.R. OF THE ASSESSEE SHRI P. K. KAPOOR, C.A. APPEARED. IT WAS POINTED OUT BY THE BENCH DURING THE COURSE OF HEARING THAT SINCE THE DATE OF TRIBUNAL ORDER IS 21/09/2007 AND A VALID MISC. APPLICATION, UNDER THE SIGNATURE OF THE ASSESSEE, HAS NOT BEEN FILED BY THE ASSESSEE WITHIN THE PERIOD OF FOUR YEARS AS PER THE PROVISIONS OF SECTI ON 254(2) OF THE ACT, HOW THIS BELATED MISC. APPLICATION FILED BY THE ASSESSEE ON 06/03/2014 IS ADMISSIBLE. IN REPLY, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE MISC. APPLICATION WAS FILED BY THE ASSESSEE WAY BACK ON 13/10/2008 AND THE DEFE CT THEREIN IS NOW REMOVED AND, THEREFORE, THE MISC. APPLICATION FILED ON 06/03/2014 SHOULD BE CONSIDERED AS MISC. APPLICATION FILED ON 13/10/2008. THEREFORE, THE MISC. APPLICATION OF THE ASSESSEE IS VALID. HE ALSO PLACED RELIANCE ON THE JUDGMENT OF HON'B LE RAJASTHAN HIGH COURT RENDERED IN THE CASE OF HARSHVARDHAN CHEMICALS AND MINERALS LTD. VS UNION OF INDIA AS REPORTED IN [2002] 256 ITR 767 (RAJ) . HE ALSO PLACED RELIANCE ON THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF SREE AYYANAR SPINNIN G AND WEAVING MILLS LTD. VS COMMISSIONER OF INCOME - TAX AS REPORTED IN [2008] 301 ITR 434. [ 3 ] 4. AS AGAINST THIS, IT WAS SUBMITTED BY LEARNED D.R. OF THE REVENUE THAT SINCE PROPER AND VALID MISC. APPLICATION HAS BEEN FILED BY THE ASSESSEE ON 06/03/2014 AFTER A LAPSE OF MORE THAN SIX YEARS FROM THE DATE OF THE TRIBUNAL ORDER, THE MISC. APPLICATION OF THE ASSESSEE IS NOT MAINTAINABLE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT ALTHOUGH A MISC. APPLICATION HAS BEEN FILED IN THIS CASE ON 13/10/20 08 BUT THE SAME IS NOT SIGNED BY ANYBODY EXCEPT THAT THE COVER ING LETTER AN D INDEX HAS BEEN FILED BY SHRI S. K. GARG, ADVOCATE/A.R. OF THE ASSESSEE BUT THE MISC. APPLICATION OF THE ASSESSEE ON PAGES 3 TO 22 HAVE NOT BEEN SIGNED BY ANYBODY AND AGAIN ON PAGE NO. 23, THE PRAYER HAS BEEN SIGNED BY SHRI AMIT SHUKLA, ADVOCATE AND HENCE, NO PROPER AND VALID MISC. APPLICATION UNDER THE SIGNATURE OF THE ASSESSEE HAS BEEN FILED BY THE ASSESSEE ON 13/03/2008. THEREAFTER, THE REGISTRY HAS ISSUED DEFECT MEMO ON 20/11/2 008 POINTING OUT THESE DEFECTS AND WHEN THE DEFECTS WERE NOT REMOVED, THE REGISTRY HAS ISSUED SEVERAL REMINDERS ON 16/01/2009, 14/05/2009 AND 16/07/2009 BUT THE DEFECTS WERE NOT REMOVED AND WHEN THE HEARING TOOK PLACE FOR THE FIRST TIME ON 28/02/2014 AND A QUERY WAS RAISED BY THE BENCH REGARDING THE ADMISSIBILITY OF THIS MISC. APPLICATION, THE LEARNED A.R. OF THE ASSESSEE SOUGHT ADJOURNMENT AND THEREAFTER , FRESH MISC. APPLICATION HAS BEEN FILED ON 06/03/2014 UNDER THE SIGNATURE OF THE ASSESSEE. HENCE, IT H AS TO BE ACCEPTED THAT NO PROPER AND VALID MISC. APPLICATION HAS BEEN FILED BY THE ASSESSEE UPTO 05/03/2014 AND ONLY ON 06/03/2014, THE MISC. APPLICATION HAS BEEN FILED BY THE ASSESSEE IN A PROPER MANNER UNDER HIS SIGNATURE. AS PER THE PROVISIONS OF SECTI ON 254(2) OF THE ACT, THE TRIBUNAL ORDER CAN BE RECTIFIED ONLY WITHIN A PERIOD OF 4 YEARS FROM THE DATE OF THE TRIBUNAL ORDER. HENCE, IN THE PRESENT CASE, THE MISC. APPLICATION OF THE ASSESSEE IS NOT MAINTAINABLE BECAUSE THE SAME IS FILED AFTER THE PRESCR IBED PERIOD OF 4 YEARS. [ 4 ] 6. NOW WE CONSIDER THE ENTIRE FACTS FROM DIFFERENT ANGLE AND ALSO IN THE LIGHT OF TWO JUDGMENTS CITED BY LEARNED A.R. OF THE ASSESSEE. IN BOTH THESE JUDGMENTS, IT IS HELD BY HON'BLE RAJASTHAN HIGH COURT AS WELL AS BY HON'BLE APEX COURT THAT ONCE THE ASSESSEE MOVES AN APPLICATION U/S 254(2) OF THE ACT WITHIN FOUR YEARS FROM THE DATE OF THE APPELLATE ORDER, THE TRIBUNAL CANNOT REJECT IT ON THE GROUND OF LIMITATION BY KEEPING IT PENDING BEYOND A PERIOD OF FOUR YEARS. BUT IN THE PRESE NT CASE, IT CANNOT BE SAID THAT A PROPER AND VALID MISC. APPLICATION WAS FILED BY THE ASSESSEE WITHIN THE PRESCRIBED PERIOD OF FOUR YEARS AND THE DISPOSAL WAS DELAYED FOR THE REASONS NOT ATTRIBUTABLE TO THE ASSESSEE. IN FACT , IN THE PRESENT CASE, THE ASSE SSEE DID NOT FILE THE MISC. APPLICATION PROPERLY UNDER HIS SIGNATURE AND EVEN AFTER DEFECT MEMO HAS BEEN ISSUED BY THE REGISTRY AND INSPITE OF TWO REMINDERS THEREOF, THE ASSESSEE DID NOT REMOVE THE DEFECT WITHIN THE PERIOD OF FOUR YEARS FROM THE DATE OF TH E TRIBUNAL ORDER. HENCE, IN THE PRESENT CASE, THE REASONS FOR DELAY IN DISPOSAL OF THE MISC. APPLICATION IS DIRECTLY ATTRIBUTABLE TO THE ASSESSEE AND HENCE, EVEN IF IT IS ACCEPTED THAT THE MISC. APPLICATION FILED BY THE ASSESSEE ON 06/03/2014 CAN RELATE B ACK TO THE DATE OF FILING OF THE ORIGINAL MISC. APPLICATION ON 13/10/2008, IT HAS TO BE ACCEPTED THAT THE DELAY IN DISPOSAL OF THIS MISC. APPLICATION HAS BEEN CAUSED FOR THE REASONS ATTRIBUTABLE TO THE ASSESSEE AND, THEREFORE, FOR THIS REASON ALSO, THE MIS C. APPLICATION OF THE ASSESSEE IS NOT ADMISSIBLE. NONE OF THE JUDGMENTS CITED BY LEARNED A.R. OF THE ASSESSEE IS RENDER ING ANY HELP TO THE ASSESSEE IN THE PRESENT CASE BECAUSE THE FACTS ARE DIFFERENT. IN THOSE TWO CASES, PROPER AND VALID MISC. APPLICATIO N WAS FILED BY THE ASSESSEE BEFORE THE EXPIRY OF THE PERIOD OF FOUR YEARS FROM THE DATE OF THE TRIBUNAL ORDER BUT IN THE PRESENT CASE, NO SUCH PROPER AND VALID MISC. APPLICATION HAS BEEN FILED BY THE ASSESSEE BEFORE THE EXPIRY OF FOUR YEARS FROM THE DATE O F TRIBUNAL ORDER AND THE DEFECTS WERE ALSO NOT REMOVED BY [ 5 ] THE ASSESSEE WITHIN THE PRESCRIBED PERIOD. IN VIEW OF ABOVE DISCUSSION, WE HOLD THAT THIS MISC. APPLICATION OF THE ASSESSEE IS NOT MAINTAINABLE BECAUSE THE DELAY IN DISPOSAL OF THE MISC. APPLICATIO N IS ATTRIBUTABLE TO THE ASSESSEE. 7. IN THE RESULT, THE MISC. APPLICATION OF THE ASSESSEE IS DISMISSED AS NOT ADMISSIBLE. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL K UMAR YADAV) ( A. K. GARODIA ) JUDIC IAL MEMBER ACCOUNTANT MEMBER DATED : 1 1 /04/2014. *C.L.SINGH COPY OF THE O RDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A ) 5. DR, ITAT, LUCKNOW ASSTT. REGISTRAR