Das Karmakar Brick Field, Kolkata V. ITO, Wd.23(1), Kolkata, Hooghly

MA 17/KOL/2023

AI Insights

The case involves Das Karmakar Brick Field, the appellant, who filed a miscellaneous application against an ex-parte order passed by the ITAT. The appellant contended that they did not receive any notice regarding the hearing of their case, leading to an ex-parte decision against them. The application was marked as delayed by 1250 days based on the limitation prescribed under section 254(2) of the Income Tax Act. However, the appellant argued that the application was not seeking rectification but a recall of the ex-parte order under Rule 24 of the ITAT Rules, which does not specify a period of limitation. The Tribunal, referencing a Delhi High Court decision, found merit in the appellant's argument and admitted the application for adjudication.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 122920 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-05-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 25-05-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 02-03-2023
• Other Referred Cases: Om Prakash Sangwan in ITA 625/2018 & CM APPL 21436/2018, ITA 626/2018 & CM APPL 21437/2018, Vijay Kumar Ruia v. Commissioner of Income Tax [2011] 15 taxmann.com (Allahabad), Liladhar T Khushlani Vs. Commissioner of Customs Tax Appeal No.915 of2016 delivered on 25.01.2017
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH ‘C’ KOLKATA [Before Dr. Manish Borad, Accountant Member & Shri Sonjoy Sarma, Judicial Member] M.A. No. 17/Kol/2023 Assessment Year : 2013-14 (In ITA 8/Kol/2017) Das Karmakar Brick Field [PAN: AAEFD 1980 C] vs ITO, Ward-23(1), Hooghly Appellant Respondent Date of Hearing 26.05.2023 Date of Pronouncement 30.05.2023 For the Assessee Shri S.M. Surana, Advocate For the Revenue Shri Vijay Kumar, Addl. CIT ORDER Per Sonjoy Sarma, JM: This miscellaneous application is at the instance of the assessee against the ex-parte order passed by the Tribunal dated 27.03.2019. 2. At the time of hearing, ld. counsel for the assessee submitted that the assessee did not get any notice from this Tribunal regarding hearing of its case and later it was decided ex-parte against the assessee. The ld. AR submitted that the assessee received an information regarding disposal of the case from the office of the ld. Assessing Officer and immediately contacted his counsel soon obtained a certified copy of the appellate order from the office of the Tribunal. 3. The ld. AR further contended that the registry has marked the application filed by the assessee as delayed by 1250 days on the basis of limitation prescribed u/s 254(2) of the I.T. Act. The ld. AR contended that it is not an application seeking rectification in the order passed by the ITAT in terms of section 254(2) of the Act but merely seeking a recall of the ex-parte order in terms of Rule 24 of the Income Tax Appellate Tribunal Rules and the limitation for moving an 2 MA No. 17/Kol/2023 AY: 2013-14 Das Karmakar Brick Field application prescribed u/s 254(2) of the Act does not attract in the present case. The Hon’ble High Court of Delhi in the case of Om Prakash Sangwan in ITA 625/2018 & CM APPL 21436/2018 and ITA 626/2018 & CM APPL 21437/2018 held as under: " Learned counsel for the appellant sought to impress upon the Court that the period mentioned in Section 254(2) of the Act only applied when the Tribunal notices the error and decides to proceed ahead to rectify it and per se does not indicate any limitation within which the aggrieved ·party (assessee or Revenue) can 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 titled Liladhar T Khushlani Vs. Commissioner of Customs Tax Appeal No.915 of2016 delivered on 25.01.2017 for this purpose. This Court is of the opinion that those judgments cannot afford the appellant any comfort. Section 254(2) of the Act was advisably amended to curtail extended period of four years which had been provided to either class of litigants to approach the IT AT for a rectification. In this case, the Court has considered the submissions of the parties. In this case, the ITAT did not decide the appeal on the merits as it is mandated to but rather rejected for non-prosecution. Rule 24 of the Income Tax Appellate Tribunal's Rules and the other provisions of both the Income Tax Act and Rules indicate that the IT AT has to decide the appeals or matters before it on the merits. In these circumstances, the ITAT's failure to do so, implies that it exceeded its jurisdiction and instead of deciding on the merits, rejected the appeal merely for non-prosecution. In the given circumstances and keeping in view the fact that Rule 25 does not stipulate any period of limitation within which the aggrieved party can approach the Tribunal, it is open to the appellant to approach the Tribunal with a suitable application for restoration of the appeals; in such event, the appeals could be considered on their merits and decided in accordance with law after hearing both the parties, provided, the application is presented before the ITAT within thirty days from today." 4. We respectfully following the Hon’ble Delhi High Court’s order abstracted (supra) and considering the present facts of the case, condone the delay in filing the miscellaneous application and admit it for adjudication. 5. We after going through the submission made by the ld. AR and considering the facts of the case, notice that nobody appeared before this Tribunal at the time of hearing and appeal was heard by this Tribunal and dismissed the appeal ex-parte against the assessee. The 3 MA No. 17/Kol/2023 AY: 2013-14 Das Karmakar Brick Field instant miscellaneous application is filed by the assessee praying for recalling of the order since it was decided ex-parte without going into the merits of the case. 6. We find that Tribunal had passed the order ex-parte due to non- appearance on behalf of the assessee. We noticed that there was a reasonable cause which prevented the ld. AR to appear before this Tribunal on the date fixed for hearing, since no notice was served upon the assessee. So we are inclined to recall the impugned order dated 27.3.2019 passed in ITA No. 8/Kol/2017 and direct the registry to fix it in due course and inform both the parties. 7. In the result, miscellaneous application of the assessee is allowed as per terms indicated hereinabove. Order is pronounced in the open court on 30.05.2023 Sd/- Sd/- (Manish Borad) (Sonjoy Sarma) Accountant Member Judicial Member Dated: 30.05.2023 Biswajit, Sr. PS Copy of the order forwarded to: 1. Appellant- Das Karmakar Brick Field, C/o. A.K. Sarkar & Associates, Chartered Accountants, AC/93A, 2 nd Floor, Prafulla Kanan East, Kestopur, Kolkata-700101. 2. Respondent – ITO, Ward-23(1), Hooghly. 3. Ld. CIT 4. Ld. CIT(A) 5. Ld. DR True Copy By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata