Surendra Kumar Khater, Kolkata V. D.C.I.T., Central Circle - XXVII, , Kolkata

MA 178/KOL/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9639 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 20-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER CIT SR DR REV
• Assessee Lawyers: S K TULSIYAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC, KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE - PRESIDENT] M.A. NO. 178/KOL/2018 (ARISING OUT OF ITA NO. 549/KOL/2013) ASSESSMENT YEAR: 2005-06 SHRI SURENDRA KUMAR KHATER.......................................................APPELLANT C/O. M/S. JAIN IMPEX PVT. LTD., 2 ND FLOOR, 113B, MANOHAR DAS STREET, KOLKATA 700 001. [PAN: AETPK 1619 N] DCIT CENTRAL CIRCLE XXVII, KOLKATA.....................RESPONDENT 110, SHANTI PALLY, KOLKATA 700 107. APPEARANCES BY: SHRI S.K. TULSIYAN, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI SANKAR HALDER, ADDL. CIT, SR. (DR) APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 07, 2018 DATE OF PRONOUNCING THE ORDER : DECEMBER 07, 2018 ORDER BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECALL OF THE TRIBUNALS ORDER DATED JANUARY 5, 2016 PASSED EX-PARTE DISMISSING THE APPEAL OF THE ASSESSEE BEING ITA NO. 549/K/2013 FOR NON-PROSECUTION. 2. AT THE OUTSET, IT IS NOTED THAT THE REGISTRY HAS RAISED A PRELIMINARY OBJECTION THAT THIS MA HAVING BEEN FILED BY THE ASSESSEE AFTER A PERIOD OF 781 DAYS FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE TRIBUNAL WAS PASSED IS BARRED BY LIMITATION. AS POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE IN THIS REGARD, THE PERIOD OF 6 MONTHS AS NOW STIPULATED IN SECTION 254(2) BY THE FINANCE ACT, 2016 WITH EFFECT FROM 01.06.2016 IS NOT APPLICABLE IN THE PRESENT CASE AND SINCE THE SAID ORDER WAS PASSED BY THE TRIBUNAL ON JANUARY 5, 2016, THE PERIOD OF 4 YEARS IS AVAILABLE TO THE ASSESSEE TO MOVE THE 2 MA NO. 178/KOL/2018 ASSESSMENT YEAR: 2005-06 SURENDRA KUMAR KHATER MISCELLANEOUS APPLICATION AS PER THE PROVISIONS OF SECTION 254(2) WHICH WERE PREVALENT UPTO 31.05.2016. SINCE THIS STAND OF THE LEARNED COUNSEL FOR THE ASSESSEE IS DULY SUPPORTED BY THE ORDER OF THE MUMBAI BENCH OF THIS TRIBUNAL PASSED IN THE CASE OF M/S. LUCENT TECHNOLOGIES GRL LLC VS ADIT IN M.A. NO. 411 TO 414/MUM/2016 DATED 09.10.2017, I HOLD THAT THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS GOVERNED BY PRE-AMENDED PROVISIONS OF SECTION 254(2) AS WERE APPLICABLE UPTO 31.05.2016 AND THE SAME BEING FILED WITHIN A PERIOD OF 4 YEARS FROM THE DATE OF THE ORDER WHICH IS SOUGHT TO BE RECTIFIED, IT IS NOT BARRED BY LIMITATION I ACCORDINGLY NOW PROCEED TO DISPOSE OF THE SAME ON MERIT. 3. AS SUBMITTED BY THE ASSESSEE IN THE PRESENT MISCELLANEOUS APPLICATION AND FURTHER REITERATED BY THE LEARNED COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING, THE ADDRESS OF THE ASSESSEE WAS CHANGED AND SINCE THE NOTICE OF THE HEARING FIXED BEFORE THE TRIBUNAL ON JANUARY 5, 2016 WAS SENT TO THE OLD ADDRESS, THE SAME COULD NOT BE RECEIVED BY THE ASSESSEE WHICH RESULTED IN HIS NON-APPEARANCE BEFORE THE TRIBUNAL ON JANUARY 5, 2016. IN MY OPINION, THIS REASON GIVEN BY THE ASSESSEE CONSTITUTES A SUFFICIENT CAUSE FOR THE NON-APPEARANCE OF THE ASSESSEE WHEN HIS APPEAL WAS CALLED FOR HEARING BEFORE THE TRIBUNAL ON JANUARY 5, 2016. I ACCORDINGLY RECALL THE ORDER OF THE TRIBUNAL DATED JANUARY 5, 2016 PASSED EX-PARTE 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 10.01.2019 AS ANNOUNCED IN THE OPEN COURT. 3 MA NO. 178/KOL/2018 ASSESSMENT YEAR: 2005-06 SURENDRA KUMAR KHATER 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH DECEMBER, 2018. SD/- (P.M. JAGTAP) VICE PRESIDENT DATED: 07/12/2018 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. SURENDRA KUMAR KHATER, C/O. M/S. JAIN IMPEX PVT. LTD., 2 ND FLOOR, 113B, MANOHAR DAS STREET, KOLKATA 700 001. 2. DCIT, CENTRAL CIRCLE XXVII, 110, SHANTI PALLY, AAYAKAR BHAWAN, KOLKATA 700 107. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA BENCH