Sh. Anwar UL Haq Haffiz, Chandigarh V. ITO, W-4(4), Chandigarh

MA 151/CHANDI/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3505 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 9 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 31-12-0000
• Assessment Year: 2009-2010
• Appeal Filed On: 26-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRIYANKA DHAR
• Keywords: Bonafide belief; Corroborative evidences; Condonation of delay
• Section: 274; 254(2); 13

Judgement Text

आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरणआयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण,च瀃डीगढ़ 瀈यायपीठ च瀃डीगढ़ 瀈यायपीठच瀃डीगढ़ 瀈यायपीठ च瀃डीगढ़ 瀈यायपीठ ‘‘ए एए ए’, च瀃डीगढ़ च瀃डीगढ़च瀃डीगढ़ च瀃डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH ‘A’ CHANDIGARH BEFORE: SMT. DIVA SINGH, JUDICIAL MEMBER & SHRI VIKRAM SINGH YADAV, ACCOUNTANT MEMBER M.A. No. 151/CHD/2019 in आयकर अपील सं./ ITA No. 1140/CHD/2016 नधा रण वष / A.Y. : 2009-10 Shri Anwar UL Haq Haffiz, #2141, Sector 35-C, Chandigarh. बनाम VS The ITO, Ward 4(4), Chandigarh. थायी लेखा सं./PAN No: ASWPS3865R अपीलाथ /Appellant यथ /Respondent नधा रती क! ओर से/Assessee by : Shri Tej Mohan Singh, Advocate राज व क! ओर से/ Revenue by : Smt. Priyanka Dhar, Sr.DR स ु नवाई क! तार&ख/Date of Hearing : 07.07.2022 उदघोषणा क! तार&ख/Date of Pronouncement : 19.07.2022 आदेश/ORDER PER DIVA SINGH The present Miscellaneous Application has been moved by the assessee u/s 254(2) of the Income Tax Act praying for recall of the ex-parte order dated 20.09.2017 in ITA 1140/CHD/2016 pertaining to 2009-10 assessment year. 2. The ld. AR inviting attention to the Miscellaneous Application filed by the assessee read alongwith the impugned order submitted that on the specific date of hearing, the assessee's application seeking time was available on record and it M.A.151/CHD/2019 In ITA 1140/CHD/2016 Page 2 of 16 had been duly noticed in the order also. The application was rejected since the assessee's counsel was not present nor was the application supported by medical evidence. In the circumstances, it was submitted that during the pre-Covid times, the appeal of the assessee was dismissed in-limine as the counsel’s unsupported request for time was possibly considered not genuine. 3. Inviting attention to para 5 of the impugned order, it was his submission that while dismissing the appeal, the Appellate Forum had provided the assessee liberty to pray for recall of this order in case the assessee was serious in pursuing the appeal. 3.1 The ld. AR inviting attention to the application on record submitted that the assessee was serious in pursuing the appeal filed. 4. Referring to the date of hearing fixed in the appeal, it was submitted by the ld. AR that the request for time by the assessee’s earlier counsel was not in the knowledge of the assessee. It was his submission that for no fault of the assessee, the appeal stood dismissed. Accordingly, considering the facts and the liberty granted to the assessee in the impugned order itself, the impugned order, it was his prayer, may be recalled M.A.151/CHD/2019 In ITA 1140/CHD/2016 Page 3 of 16 accepting the application filed so as to grant the assessee an opportunity to seek adjudication of the issues in the appeal on merits. 5. The record shows that the Registry has pointed to a delay. The ld. AR was, accordingly, required to first address the delay of 545 days pointed out by the Registry in the filing of the present Miscellaneous Application. 5.1 Addressing the delay, the ld. AR inviting attention to the Condonation of delay application filed submitted that in the facts of the present case, there is infact no delay. 5.2 The delay, it was submitted, is to be considered from the date of service of the order and not from the date of the order. 5.3 In the facts of the present case, it was submitted, the assessee has not received copy of the order dated 20.09.2017. Accordingly, it was submitted that the limitation may not be counted from that date. The impugned order, it was submitted, has been received on 16.09.2019. Copy of the TRO’s letter of 23.07.2019 was relied upon. Thereafter, it was submitted the assessee had made efforts to find out the fate of his appeal. The copy of the order was made available as a result of these efforts on 13.09.2019. The present Miscellaneous Application, it was M.A.151/CHD/2019 In ITA 1140/CHD/2016 Page 4 of 16 submitted, has been filed on 27.09.2019. Accordingly, on facts, it was submitted, the application filed is very much within time and there is no delay. 5.4 Referring to the facts on record, it was elaborated that the assessee was not aware that its appeal stood dismissed by the ITAT on 20.09.2017. The assessee after appointing a counsel remained under the belief that the appeal was being attended to. The counsel as per record did put in an appearance by application seeking time. The assessee remained under a bonafide belief that the appeal was still pending. On receipt of the notice from the Tax Recovery Officer dated 23.07.2019 for appearance on 05.08.2019, the assessee informed the TRO that his appeal was pending before the ITAT. It was at that stage that the assessee was informed that his appeal stood dismissed. It was submitted that at that stage, the assessee got in touch with his earlier counsel who informed that she also had not received copy of the order. Certified copy of the order, it was submitted, was received on his queries from the ITAT only on 13.09.2019. 5.5 For ready reference, the contents of the Condonation of delay application relied upon before the ITAT are extracted hereunder for completeness: M.A.151/CHD/2019 In ITA 1140/CHD/2016 Page 5 of 16 Application for condonation of delay Respectfully showeth as under: 1. The abovementioned assessee-appellant is in receipt of Show Cause Notice wherein it is mentioned that the Miscellaneous Application is prima facie time barred by 545 days. 2. That it is submitted that there is no delay in filing of Miscellaneous Application in as much as the copy of the order passed by the Hon'ble ITAT was received only on 16.09.2019 and the Miscellaneous Application has been filed on 27.09.2019 which is within time. 3. That facts in brief are that the above appeal has been heard and decided by the Hon'ble Bench vide order dated 20.09.2017. 4. That the my counsel Ms. Minky Mittal had moved an adjournment application citing the reason as being unwell but the request for adjournment was rejected and the appeal was dismissed. 5. That I received a notice from the Tax Recovery Officer dated 23.07.2019 for appearance on 05.08.2019. 6. That I informed the Tax Recovery Officer that an appeal is pending before the Hon'ble ITAT against the order passed by Commissioner of Income Tax (Appeals). 7. That it was informed by him that an order dismissing the appeal has already been passed on 20.09.2017. 8. That I immediately contacted my Counsel who informed that she has not received any such order. 9. That thereafter I moved an application before the Assistant Registrar, ITAT for issuance of order passed in my case. 10. That I have received certified copy of the order and the present miscellaneous application has been moved for recalling of the ex-parte order dated 20.09.2017 for fresh adjudication of the appeal on merits on 27.09.2019. 11. That the order dismissing the appeal was never served on me which has been sent by registered post on 31.10.2017 as mentioned in the covering letter dated 13.09.2019 issued by the Assistant Registrar. 12. That the contents of my affidavit filed alongwith the Miscellaneous Application are reiterated and copy of the same is annexed herewith. It is, therefore, respectfully prayed that the delay be condoned there being a reasonable cause and in the in interest of substantial justice, the appeal be heard on merits. (emphasis supplied) 5.6. Attention was invited to the affidavit dated 27.09.2019 filed by the assessee duly notarized affirming the said contents. The contents of the Affidavit dated 27.09.2019 available on record are also reproduced hereunder for completeness : M.A.151/CHD/2019 In ITA 1140/CHD/2016 Page 6 of 16 AFFIDAVIT Affidavit of Shri Anwar UL Haq Haffiz son of Shri H a f f i z SeaduJaffar r / o o f#2 1 4 1 , Sector 35-C, Chandigarh the above named solemnly a f f i r m and state as under:- 1, That I had preferred an appeal against the order of the Commissioner of Income Tax (Appeals) before the Hon'ble ITAT. 2. That the above appeal has been heard and decided by the Hon'ble Bench vide order dated 20.09.2017. 3. That the my counsel Ms. Minky Mittal had moved an adjournment application citing the reason as being unwell but the request for adjournment was rejected and the appeal was dismissed. 4. That I received a notice from the Tax Recovery Officer dated 23.07.2019 for appearance on 05.08.2019. 5. That I informed the Tax Recovery Officer that an appeal is pending before the Hon'ble ITAT against the order passed by Commissioner of Income Tax (Appeals). 6. That it was informed by him that an order dismissing the appeal has already been passed on 20.09.2017. 7. That I immediately contacted my Counsel who informed that she has not received any such order. 8. That thereafter I moved an application before the Assistant Registrar, ITAT for issuance of order passed in my case. 9. That I have received certified copy of the order and the an application has been moved for recalling of the ex-parte order dated 20.09.2017 for fresh adjudication of the appeal on merits. 10. That the order dismissing the appeal was never served on me which has been sent by registered post on 31.10.2017 as mentioned in the covering letter dated 13.09.2019 issued by the Assistant Registrar Income tax Appellate Tribunal.” (emphasis supplied) 5.7 In the said background, inviting attention to the following application filed on 27.09.2019, it was his prayer that the impugned order may be recalled granting the assessee opportunity to argue its appeal. The application for completeness re-iterating the same facts is reproduced hereunder: Application under section 254(2) of the Act, 1961 for rectification. Respectfully showeth as under: M.A.151/CHD/2019 In ITA 1140/CHD/2016 Page 7 of 16 1. That the above appeal has been heard and decided by the Hon'ble Bench vide order dated 20.09.2017. 2. That the m y counsel Ms. Minky Mittal had moved an adjournment application citing the reason as being unwell but the request for adjournment was rejected and the appeal was dismissed. 3. That I received a notice from the Tax Recovery Officer dated 23.07.2019 for appearance on 05.08.2019. 4. That I informed the Tax Recovery Officer that an appeal is pending before the Hon'ble ITAT against the order passed by Commissioner of Income Tax (Appeals). 5. That it was informed by him that an order dismissing the appeal has already been passed on 20.09.2017. t 6. That I immediately contacted my Counsel who informed that she has not received any such order. 7 . That thereafter I moved an application before the Assistant Registrar, ITAT for issuance of order passed i n my case. 8. That I have now received certified copy of the order and the present application has been moved for recalling of the ex-parte order dated 20.09.2017 for fresh adjudication of the appeal on merits. 9. That the order dismissing the appeal was never served on me which has been sent by registered post on 31.10.2017 as mentioned in the covering letter dated 13.09.2019. 10. That non appearance of my counsel on the date of hearing was due to her indisposition which fact was brought on record in the adjournment application and as such there was no mala-fide intent or unintentional non appearance on the date of hearing. It is. therefore, respectfully prayed that in view of the facts and circumstances stated above, he appeal may please be recalled for a regular hearing. (emphasis supplied) 5.8 Accordingly, it was his prayer that the ex-parte order may be recalled. 6. The ld. Sr.DR Ms.Dhar objected to the recall of the ex-parte order. It was her submission that the assessee cannot be allowed to argue that from Septemer,2017 onwards, he remained oblivious of the fate of the order upto Sept.,2019. It was her vehement M.A.151/CHD/2019 In ITA 1140/CHD/2016 Page 8 of 16 argument that the assessee is expected to be live and alert to its responsibilities and by merely appointing a counsel, the assessee cannot plead that he was ignorant. 6.1 Letter of the Registry dated 13.09.2019 making available the certified copy simultaneously informing that the copy of the order had been sent by Registered post on 31.10.2017 was relied upon to argue that the said letter has never been returned unserved. 7. The ld. AR in reply invited specific attention again to the submissions of the assessee supported on an Affidavit stating that copy of the aforesaid order was never received either by the assessee or by his counsel. It was re-iterated that on account of the TRO’s office letter requiring the assessee to be present on 05.08.2019 the assessee learned about its dismissal in limine. 7.1 In the said background, it was his submission that the assessee on the receipt of the letter of the Registry of the ITAT informing that copy of the order had already been sent by Post made enquiries from the office of the Superintendent of Post Office enquiring about the delivery status of the stated Registered Letter addressed to the assessee. 7.2 Inviting attention to the response received from the Post Office, it was submitted, the assessee was informed that the M.A.151/CHD/2019 In ITA 1140/CHD/2016 Page 9 of 16 relevant record has been weeded out. The reply received by the assessee relied upon same is extracted hereunder : 7.3 It was his submission that these documents have been sent by e-mail and were available to the Sr.DR. 8. The ld. Sr.DR agreed that these documents were available to her. No evidence or argument to rebut the contents of the affidavit and supporting evidences were relied upon in support of her prayer. 9. We have heard the rival submissions and perused the material available on record. It is seen that on the receipt of the assessee's request for receipt of certified copy of the order, the Registry of the ITAT attempted to verify the status of the delivery status of the said M.A.151/CHD/2019 In ITA 1140/CHD/2016 Page 10 of 16 order. The relevant extract from our record is reproduced hereunder for completeness : 9.1 We have also seen from the reply received from the Sr.Post Master, Chandigarh GPO that the relevant records have not been maintained by the Post Office and these have been weeded out. Similar position on facts has been submitted and placed on behalf of the assessee before us. For the sake of completeness, the reply made to the Registry available on record is extracted hereunder : M.A.151/CHD/2019 In ITA 1140/CHD/2016 Page 11 of 16 9.2 Accordingly, in these peculiar facts we find that in the absence of any evidence to the contrary, the averments made by the assessee on an affidavit cannot be outrightly discarded. The assessee on an affidavit has stated that the fact of dismissal of his appeal by the ITAT was not known to him. That only after the TRO’s letter, he discovered about the fate of his appeal and the copy of the order was consequently received by the assessee vide covering letter dated 13.09.2019. These averments supported by evidences remain unrebutted on record. We have taken into consideration the efforts made by the assessee from the postal authorities as well as the efforts of the Registry from the postal authorities. No contrary fact or argument has been placed before us. In the absence of the unrebutted affidavit on record, we find that the issue is fully covered by the decision of the Co-ordinate M.A.151/CHD/2019 In ITA 1140/CHD/2016 Page 12 of 16 Bench in the case of Techknoweledgy Interactive Partners P.Ltd. V ITO (2021) 130 taxmann.com 194. Reliance in the aforesaid order has been placed on the decision of the Hon'ble Delhi High Court in the case of Golden Times Services Pvt. Ltd. V DCIT (2020) 422 ITR 102. A perusal of the said decision shows that the Hon'ble Court has held that under Rule 24 of the Income Tax Appellate Tribunal Rules, 1963 it is construed obligation of the Tribunal to dispose the appeal on merits. In the facts of the said case, the appeal filed by the assessee was dismissed in limine. The facts in the present case are pari materia as herein also the appeal of the assessee was dismissed for non prosecution. The Hon'ble Court considering the order of the ITAT wherein the application moved u/s 254(2) was dismissed on the grounds of limitation held that the dismissal of the application for recall of the order on the grounds of limitation by the ITAT was not valid. In the facts of the said case, prayer for recall of order dated 18.10.2016 by way of application dated 08.03.2018 was made pleading that absence was for reasons beyond its control. It was further pleaded that the assessee did not have the knowledge of dismissal of its appeal. Their Lordships considering the provisions of Section 254(2), referring to Section 254(3) of the Income Tax Act and Rule 24 of the ITAT Rules in the context of the pleadings on record wherein the ITAT M.A.151/CHD/2019 In ITA 1140/CHD/2016 Page 13 of 16 had granted opportunity to pray for a recall of the order held that the proper way to consider limitation would be the date of communication or knowledge, actual or constructive, of the orders sought to be rectified or amended under section 254(2) of the Act becomes critical and determinative for the commencement of the period of limitation. Reference may also be made to certain decisions of the Apex Court relied upon. In the case of D.Saibaba V Bar Council of India (2003) 6 SCC 186 the Court examining the limitation under the Advocates Act, 1961 of “60 days from the date of that order” clearly held that the Apex Court held that the expression “the date of the order” must be construed as meaning the date of communication or knowledge of the order to the affected person. It would be relevant to extract para 9 from the aforesaid decision : "9. So far as the commencement of the period of limitation for filing the review petition is concerned we are clearly of the opinion that the expression "the date of that order" as occurring in Section 48-AA has to be construed as meaning the date of communication or knowledge of the order to the review petitioner. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart. (emphasis supplied) 9.3 Reference may also be made to Raja Harish Chandra Raj Singh Vs Deputy Land Acquisition Officer AIR 1961 SC 1500 (1962) 1 SCR M.A.151/CHD/2019 In ITA 1140/CHD/2016 Page 14 of 16 676 wherein the Court held that literal or mechanical way of construing the words ‘from the date of the Collector’s award’ was unreasonable. The Court assigned a practical meaning to the expression by holding that it is the date when the award is either communicated to the party or is known by him either actually or constructively.” 9.4 Reference may also be made to the extract from the decision by the Hon'ble Delhi High Court relying on Raj Kumar Dey V Tarapada Dey (1987) 4 SCC 398 wherein an elaborate discussion was considered in the aforesaid decision of the Apex Court : 13. In Raj Kumar Dey v. Tarapada Dey [(1987) 4 SCC 398] this Court pressed into service two legal maxims guiding and assisting the court while resolving an issue as to calculation of the period of limitation prescribed, namely, (i) the law does not compel a man to do that which he could not possibly perform, and (ii) an act of the court shall prejudice no man. These principles support the view taken by us hereinabove. Any view to the contrary would lead to an absurdity and anomaly. An order may be passed without the knowledge of anyone except its author, maybe kept in the file and consigned to the record room or the file may lie unattended, unwittingly or by carelessness. In either case, the remedy against the order would be lost by limitation though the person aggrieved or affected does not even know what order has been passed. Such an interpretation cannot be countenanced. 14. How can a person concerned or a person aggrieved be expected to exercise the right of review conferred by the provision unless the order is communicated to or is known to him either actually or constructively? The words "the date of that order", therefore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed." (emphasis supplied) M.A.151/CHD/2019 In ITA 1140/CHD/2016 Page 15 of 16 10. Accordingly, considering the legal position as available on the facts as they stand, we are of the view that the assessee in the peculiar facts and circumstances of the present case has satisfactorily explained that non-representation before the Tribunal was not intentional as after having appointed a counsel, the assessee on facts could justifiably plead that he remained under a bonafide belief that his case was being looked after by the counsel. Considering the record, the submissions and the facts alongwith the legal precedent as cited and considered herein above, we are of the view that on facts there was no delay. The evidences on record sufficiently demonstrate that the assessee before the TRO’s letter in July,2019 had no knowledge of the order dismissing its appeal in limine wherein liberty had been granted to the assessee to pray for a recall after the absence is explained. We find that no contrary evidence has been placed before us to disbelieve the contents of the affidavit and in the circumstances, where the order of dismissal of his appeal was communicated to the assessee on 13.09.2019, we find that there is no delay in the filing of the present Miscellaneous Application. 11. Accordingly, considering the aforesaid decisions and also relying upon decision of the Hon'ble Delhi High Court in the case of CIT Vs Ansal Housing Construction Ltd. 274 ITR 131 (Del), we deem M.A.151/CHD/2019 In ITA 1140/CHD/2016 Page 16 of 16 it appropriate to recall the ex-parte order dated 20.09.2017 in ITA 1140/CHD/2016. The appeal is directed to be fixed for hearing on 30.08.2022. Registry is directed to issue notice to the parties. Said order was pronounced at the time of hearing itself. 12. In the result, Miscellaneous Application of the assessee is allowed. Order pronounced on 19 th July,2022. Sd/- Sd/- (VIKRAM SINGH YADAV) (DIVA SINGH) लेखा लेखालेखा लेखा सद瀡य सद瀡यसद瀡य सद瀡य/ Accountant Member 瀈याियक 瀈याियक瀈याियक 瀈याियक सद瀡य सद瀡यसद瀡य सद瀡य/ Judicial Member “Poonam” आदेश क琉 灹ितिलिप अ灡ेिषत/ Copy of the order forwarded to : 1. अपीलाथ牸/ The Appellant 2. 灹瀄यथ牸/ The Respondent 3. आयकर आयु猴/ CIT 4. आयकर आयु猴 (अपील)/ The CIT(A) 5. िवभागीय 灹ितिनिध, आयकर अपीलीय आिधकरण, च瀃डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड榁 फाईल/ Guard File आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar