M/s. MAA TARA AGRO INDUSTRIES, Murshidabad V. ITO, Ward - 4, , Murshidabad

MA 179/KOL/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9533 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 25-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER
• Assessee Lawyers: S M SURANA
• Keywords: Period of limitation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC, KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE - PRESIDENT] M.A. NO. 179/KOL/2018 (ARISING OUT OF ITA 233/KOL/2014) ASSESSMENT YEAR: 2006-07 M/S. MAA TARA AGRO INDUSTRIES.......................................................APPELLANT VILL. & P.O. SATITARA, MURSHIDABAD 742 132. [PAN: AAMFM 5316 R] ITO WARD 4...................RESPONDENT MURSHIDABAD. APPEARANCES BY: SHRI S.M. SURANA, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI SANKAR HALDER, JCIT, SR. (DR) APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : OCTOBER 10, 2018 DATE OF PRONOUNCING THE ORDER : DECEMBER 21, 2018 ORDER BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECALL OF THE TRIBUNALS ORDER DATED JULY 12, 2017 PASSED EX-PARTE DISMISSING THE APPEAL OF THE ASSESSEE BEING ITA NO. 233/K/2014 FOR NON-PROSECUTION ON THE GROUND THAT THE NOTICE OF THE HEARING FIXED BEFORE THE TRIBUNAL ON 12.07.2017 WAS NEVER RECEIVED BY THE ASSESSEE AND NONE, THEREFORE, COULD APPEAR BEFORE THE TRIBUNAL ON THE SAID DATE. 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 2 MA NO. 179/KOL/2018 ASSESSMENT YEAR: 2006-07 MAA TARA AGRO INDUSTRIES 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 ASSESSEE BY THE DECISION OF HONBLE 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 TRIBUNALS 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 HONBLE 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 3 MA NO. 179/KOL/2018 ASSESSMENT YEAR: 2006-07 MAA TARA AGRO INDUSTRIES 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. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST DECEMBER, 2018. SD/- (P.M. JAGTAP) VICE PRESIDENT DATED: 21/12/2018 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. M/S. MAA TARA AGRO INDUSTRIES, SATITARA, MURSHIDABAD 742 132. 2. ITO WARD 4, MURSHIDABAD. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA BENCH