TRIMURTHY ENTERPRISES, V. ITO WD 24(7),

MA 161/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1177 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-10-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 06-09-2013
• Assessment Year: 1995-1996
• Appeal Filed On: 08-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'J' BENCH, MUMBAI BEFORE SHRI P.M. JAGTAP ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER MA NO. 161/MUM/2013 ARISING OUT OF ITA 5935/MUM/1998 ASSESSMENT YEAR 1995-96 DATE OF HEARING: 11/10/2013 DATE OF PRONOUNCEMENT: 11/10/2013 O R D E R PER AMIT SHUKLA, JM THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE ON 8-5-2013 IN RELATION TO ORDER PASSED BY THE TRIBUNA L IN ITA NO. 5935/MUM/1998 VIDE ORDER DATED 25.10.2004, WHICH IS MUCH AFTER THE PERIOD OF FOUR YEARS AS PRESCRIBED 254(2). IN THE MISCELLANEOUS PETITION THE ASSESSEE HAS MAINLY CONTENDED OF RECALLING OF EX-PARTE ORDER DATED 25-10-2004 WHICH IS DELAYED BY 1,630 DAYS. ALONG WI TH THE MISCELLANEOUS APPLICATION, THE ASSESSEE HAS ALSO FILED PETITION F OR CONDONATION OF DELAY M/S TRIMURTY ENTERPRISES 205-LUCKY STAR CO-OP HSG. SOCIETY LTD., JERBAI WADIA ROAD MUMBAI 400 012. INCOME TAX OFFICER WARD -24(7) PRATYAKSHKAR BHAVAN BANDRA KURLA COMPLEX . APPELLANT RESPONDENT DEPARTMENT BY. SHRI S.K. SINHA ASSESSEE BY: MS. SANJUKTA CHOUDHARY ALONG WITH THE AFFIDAVIT OF SHRI ASHWANI KUMAR MISH RA, KARTA OF THE HUF, WHO IS THE MAIN PARTNER IN THE ASSESSEES FIRM. 2. BEFORE US, THE LEARNED COUNSEL SUBMITTED THAT DU E TO BONAFIDE AND GENUINE REASON, THE ASSESSEE COULD NOT ARGUE ITS CA SE ON THE DATE OF HEARING FIXED BY THE TRIBUNAL. AS A RESULT OF WHICH , THE APPEAL WAS DECIDED EX-PARTE; DISMISSING THE APPEAL OF THE ASSESSEE BY FOLLOWING THE DECISION OF M/S MULTIPLAN INDIA PVT. LTD., REPORTED IN 38 ITD 320. HE ALSO SUBMITTED THAT DELAY IN FILING OF MISCELLANEOUS APP LICATION IS THAT MR. ASHWANI KUMAR MISHRA WHO IS THE MANAGER/PARTNER IS LOOKING AFTER ALL THE AFFAIRS OF THE ASSESSEES FIRM AND WAS NOT KEEPING IN GOOD HEALTH. HE WAS UNDER MEDICAL TREATMENT ON ACCOUNT OF LIVER SEROSIS AND LUNGS FAILURE FOLLOWED BY TUBERCULOSIS, THUS HE WAS UNABLE TO TAK E REMEDIAL ACTION AGAINST THE EX-PARTE ORDER PASSED BY THE TRIBUNAL BEFORE TIME. THUS, IN THE INTEREST OF JUSTICE, HE SUBMITTED THAT THE EX-PARTE ORDER MAY BE RECALLED AND BE DECIDED ON MERITS. 3. THE LEARNED DR ON THE OTHER HAND SUBMITTED THAT SUCH AN ORDER CANNOT BE RECALLED AFTER EXPIRY OF FOUR YEARS FROM THE DATE OF ORDER AND THERE IS NO PROVISION FOR CONDONATION OF DELAY. THE REFORE, THE PRESENT PETITION SHOULD BE DISMISSED AS SUCH. 4. AFTER CAREFULLY GOING THROUGH THE MATERIAL PLACE D ON RECORD, IT IS EVIDENT THAT THE ORDER OF TRIBUNAL WAS PASSED ON 2 5-10-2004 AND PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED ON 8.5.201 3, WHICH IS MUCH BEYOND THE PERIOD OF FOUR YEARS AS PRESCRIBED IN SU B-SECTION 2 OF SECTION 254. THE SPECIAL BENCH OF INCOME-TAX APPELLATE TRIB UNAL, IN THE CASE OF ARVIND BHAI H. SHAH VS. ACIT, WHICH WAS RENDERED BY FIVE MEMBERS, REPORTED IN 2004 (91 ITD 101) (AHMEDABAD) (SPECIAL BENCH), HAS CATEGORICALLY HELD THAT NO ORDER CAN BE AMENDED THR OUGH RECTIFICATION AFTER EXPIRY OF FOUR YEARS FROM THE DATE OF THE ORDER. TH ERE IS NO PROVISION FOR CONDONATION OF DELAY ALSO IN SECTION 254 (2). THUS IN VIEW OF THE AFORESAID DECISION OF SPECIAL BENCH, WE DO NOT FIND ANY MERIT IN CONDONING THE DELAY OF 4 YEARS AND 169 DAYS I.E ( 1630 DAYS) BECAUSE, I T IS BEYOND THE SCOPE OF SECTION 254(2). THUS THE PRESENT MISCELLANEOUS A PPLICATION IS BEING REJECTED ON THE GROUND OF BEING BARRED BY LIMITATI ON. 5. IN THE RESULT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 11-10-2013 SD/- SD/- (P.M. JAGTAP) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER SKS SR. P.S, MUMBAI DATED 11.10.2013 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, J BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI