M/s Balaka Vinimoy Pvt. Ltd., Kolkata V. ITO, Ward-5(4),Kolkata, Kolkata

MA 130/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4834 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 30-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHURY CIT DR REVEN
• Assessee Lawyers: S JHAJHARIA
• Keywords: Period of limitation; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D, KOLKATA [BEFORE SHRI J. SUDHAKAR REDDY, HONBLE AM & SHRI S.S. GODARA, HONBLE JM] M.A. NO. 130/KOL/2019 (A/O. ITA NO. 1701/KOL/2016) ASSESSMENT YEAR: 2008-09 BALAKA VINIMAY PVT. LTD.......................................................APPELLANT 9/12. LAL BAZAR STREET 2 ND FLOOR KOLKATA 700 001 [PAN: AADCB 2610 B] VS. INCOME TAX OFFICER, WARD-5(4), KOLKATA........................................RESPONDENT APPEARANCES BY: SHRI S. JHAJHARIA, FCA APPEARING ON BEHALF OF THE ASSESSEE. SHRI ROBIN CHOUDHURY, ADDL. CIT (D/R) APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JULY 26 TH , 2019 DATE OF PRONOUNCING THE ORDER : AUGUST 9 TH , 2019 ORDER PER J. SUDHAKAR REDDY, AM :- BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE SEEKS RECALL OF THE ORDER OF THIS TRIBUNAL DT. 08/01/2018. THE TRIBUNAL HAD DISMISSED THE CASE FOR NON- PROSECUTION. 2. THERE IS A DELAY OF 304 DAYS IN FILING OF THE MISCELLANEOUS APPLICATION. THE LD. D/R SUBMITTED THAT A ORDER CANNOT BE PASSED BEYOND THE PERIOD OF 6 (SIX) MONTHS, AS SPECIFIED U/S 254(2) OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE DECISION OF THIS TRIBUNAL IN THE CASE OF M/S. MAA TARA AGRO INDUSTRIES VS. I.T.O. WARD-4, MURSHIDABAD IN M.A. 179/KOL/2018, ORDER DT. 21/12/2018, WHICH IN TURN APPLIED THE JUDGMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF OM PRAKASH SANGWAN VS ITO (2018) 94 TAXMANN.COM 394 (DELHI) AND SUBMITTED THAT TIME LIMITATION IS NOT APPLICABLE FOR APPEALS WHICH WERE DISMISSED FOR NON- PROSECUTION. 3. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT THIS BENCH OF THE TRIBUNAL IN THE CASE OF OM PRAKASH SANGWAN VS ITO (SUPRA) HELD AS FOLLOWS:- 2. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AT THE OUTSET, IT IS NOTICED THAT THIS MISCELLANEOUS APPLICATION SEEKING RECALL OF THE EX-PARTE ORDER OF THE TRIBUNAL DATED JULY 12, 2017 HAS BEEN FILED BY THE ASSESSEE ON 25.09.2018 AND THE SAME HAVING BEEN FILED BY THE ASSESSEE AFTER 237 DAYS FROM THE PERIOD OF 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE CORRESPONDING ORDER WAS PASSED BY THE TRIBUNAL, THERE IS A DELAY OF 237 DAYS IN FILING THE SAME IN TERMS OF SECTION 254(2) AS POINTED OUT BY THE REGISTRY. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE SIDES ON THIS ASPECT OF DELAY, I FIND THAT THE SAME IS SQUARELY COVERED IN FAVOUR OF THE 2 M.A. NO. 130/KOL/2019 (A/O. ITA NO. 1701/KOL/2016) ASSESSMENT YEAR: 2008-09 BALAKA VINIMAY PVT. LTD ASSESSEE BY THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF OM PRAKASH SANGWAN VS ITO (2018) 94 TAXMANN.COM 394 (DELHI) WHEREIN IT WAS HELD THAT RULE 24 OF THE INCOME TAX APPELLATE TRIBUNAL'S RULES AND THE OTHER PROVISIONS OF BOTH THE INCOME TAX ACT AND THE RULES INDICATE THAT THE ITAT HAS TO DECIDE THE APPEALS OR MATTERS BEFORE IT ON MERITS AND ITS FAILURE TO DO SO IMPLIES THAT IT EXCEEDED ITS JURISDICTION AND INSTEAD OF DECIDING ON THE MERITS, REJECTED THE APPEAL MERELY FOR NON-PROSECUTION. IT WAS HELD THAT SINCE RULE 24 DOES NOT STIPULATE ANY PERIOD OF LIMITATION WITHIN WHICH THE PARTY AGGRIEVED BY EX-PARTE ORDER CAN APPROACH THE TRIBUNAL, IT IS OPEN TO THE APPLICANT TO APPROACH THE TRIBUNAL WITH THE SUITABLE APPLICATION FOR RESTORATION OF THE APPEALS AND THE TIME PERIOD STIPULATED IN SECTION 254(2) OF THE ACT IS NOT APPLICABLE. FOLLOWING THIS DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF OM PRAKASH SANGWAN, I HOLD THAT THIS APPLICATION FILED BY THE ASSESSEE FOR RECALL OF THE EX-PARTE ORDER AND RESTORATION OF ITS APPEAL IS NOT BARRED BY LIMITATION. 3. ON MERIT, I HAVE CONSIDERED THE REASON GIVEN BY THE ASSESSEE FOR ITS NON- APPEARANCE BEFORE THE TRIBUNAL ON JULY 12, 2017 WHEN THE APPEAL WAS CALLED FOR HEARING. KEEPING IN VIEW THE SAID REASON, I AM SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR THE NON-APPEARANCE OF THE ASSESSEE BEFORE THE TRIBUNAL ON JULY 12, 2017. I ACCORDINGLY RECALL THE EX-PARTE ORDER PASSED BY THE TRIBUNAL DATED JULY 12, 2017 KEEPING IN VIEW THE PROVISO TO RULE 24 OF THE APPELLATE TRIBUNAL RULES, 1963 AND RESTORE THE APPEAL OF THE ASSESSEE TO ITS ORIGINAL NUMBER. THE REGISTRY IS DIRECTED TO FIX THE SAID APPEAL FOR HEARING AFRESH BEFORE THE REGULAR BENCH ON 21.01.2019. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. 3.1. RESPECTFULLY FOLLOWING THE PROPOSITIONS OF LAW LAID DOWN BY THE HONBLE DELHI HIGH COURT IN THE CASE OF OM PRAKASH SANGWAN (SUPRA), WE HOLD THAT THE APPLICATION OF THE ASSESSEE IS NOT BARRED BY LIMITATION. 4. ON MERITS, THE ASSESSEE HAS APPEARED BEFORE US AND SATISFIED US THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON-APPEARANCE WHEN THE APPEAL WAS CALLED FOR HEARING. THE TRIBUNAL HAD NOT ADJUDICATED THIS APPEAL ON MERITS, AS PER LAW. THUS, WE SET ASIDE THE ORDER OF THIS TRIBUNAL AND RESTORE THE APPEAL IN TERMS OF PROVISO TO RULE 24 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963. THE REGISTRY IS DIRECTED TO POST THE APPEAL FOR HEARING ON 03/09/2019. AS THIS DATE WAS PRONOUNCED IN THE OPEN COURT, NO SEPARATE NOTICE OF HEARING SHALL BE ISSUED TO EITHER PARTY. 5. IN THE RESULT, THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 9 TH DAY OF AUGUST, 2019. SD/- SD/- [S.S. GODARA] [J. SUDHAKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 09.08.2019 {SC SPS} 3 M.A. NO. 130/KOL/2019 (A/O. ITA NO. 1701/KOL/2016) ASSESSMENT YEAR: 2008-09 BALAKA VINIMAY PVT. LTD COPY OF THE ORDER FORWARDED TO: 1. BALAKA VINIMAY PVT. LTD 9/12. LAL BAZAR STREET 2 ND FLOOR KOLKATA 700 001 2. INCOME TAX OFFICER, WARD-5(4), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES