Sh. Suresh Kumar, Ferozepur City. V. COMMISSIONER OF INCOME TAX , BATHINDA

MA 19/ASR/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8313 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 2 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-04-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 25-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: P N ARORA LD
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER M.A NO.19(ASR)/2018 (ARISING OUT OF I.T.A NO.305(ASR)/2016) ASSESSMENT YEAR:20 10-11 SH. SURESH KUMAR PROP. M/S SHRI NANAK ENTERPRISES, STREET RAJA RAM KALIA, FEROZEPUR CITY [PAN: ALYPK 6070F] VS. COMMISSIONER OF INCOME TAX, BATHINDA (APPELLANT) (RESPONDENT) APPELLANT BY: SH. P.N.ARORA (LD. ADV.) RESPONDENT BY: SH. CHARAN DASS (LD. DR) DATE OF HEARING: 05.04.2019 DATE OF PRONOUNCEMENT 01.07.2019 ORDER PER N.K.CHOUDHRY, JM: THIS ORDER SHALL DISPOSE OF THE MISC. APPLICATION UNDER CONSIDERATION FILED BY THE ASSESSEE, WHEREIN IT WAS CONTEN DED BY THE ASSESSEE THAT THE APPEAL I.E. ITA NO.305/ASR/2016 FI LED BY THE ASSESSEE WAS DISMISSED FOR WANT OF PROSECUTION VIDE ORDER DATED 14.03.2017 BY THE HONBLE BENCH WHICH IS SOUGHT TO BE RECTIFIED BY FILING AN APPLICATION ON DATED 25/05/201 8. THE MAIN CONTENTION OF THE ASSESSEE IS THAT ON THE DATE OF HEARIN G OF THE APPEAL ON DATED 14/03/2017, THOUGH NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING OF THE APPEAL, HOWE VER THE ASSESSEE ATTENDED THE TRIBUNAL ONLY AT 3.50 PM ON 14.0 3.2017 AND BY FILING A LETTER BEFORE THE OFFICE OF TRIBUNAL ON SAME DAY, REASONED NON-APPEARANCE ON THE GROUND THAT THE ASSESSEE S WIFE SMT. ANURADHA WAS SUFFERING FROM CANCER AND THERE FORE THE M.A.NO.19/ASR/2018 (A.Y.2010-11) (ARISING OUT OF ITA NO.305(ASR)/2016) SURESH KUMAR PROP. VS. ITO 2 ASSESSEES WENT TO THE DOCTOR AND THUS, THE DELAY IN REACHI NG BEFORE ITAT, AMRITSAR CAUSED WHICH RESULTED INTO PASSING AN EX- PARTE ORDER. THE ASSESSEE FURTHER SUBMITTED THAT THERE WAS REASONABLE AND SUFFICIENT CAUSE BY WHICH THE ASSESSEE WAS PREVENTED FROM APPEARING IN THE COURT ON 14/03/2017 IN TIME. EVEN NO ORDER FROM THE TRIBUNAL WAS RECEIVED AND ACCOR DINGLY THE ASSESSEES COUNSEL EXAMINED THE FILE AND REQUESTED TO T HE REGISTRY TO PROVIDE COPY OF THE ITAT ORDER PASSED IN IT A NO.305/ASR/2016 TO THE ASSESSEE FOR ENABLING TO TAKE APPROPRIATE ACTION. HOWEVER, THE COPY OF THE ORDER DA TED 14/03/2017 OF THE BENCH WAS RECEIVED BY THE ASSESSEE FOR THE FIRST TIME ONLY ON 09/04/2018 AND IMMEDIATELY THEREA FTER ON 25/04/2018 THE MISC. APPLICATION FOR RECTIFICATION OF T HE ORDER HAS BEEN FILED. IF THERE IS ANY DELAY IN FILING OF TH E APPLICATION, THEN THE SAME IS ALSO CONDONABLE BECAUSE THE REASONABLE IS REASONABLE SUFFICIENT CAUSE BASED UPON THE FACTS STATED ABOV E. THE LD. COUNSEL ALSO RELIED UPON THE JUDGMENT PASSED BY THE HONBLE APEX COURT AND THE HIGH COURTS OF MUMBAI AND RAJASTHAN IN THE FOLLOWING CASES. (I) PETLAD BULAKHIDAS MILLS CO. LTD. VS. RAJ SINGH [195 9] 37 ITR 0264 (II) D. SAIBABA VS. BAR COUNCIL OF INDIA & ANR. IN WRIT PETITION (CIVIL) NO.528 OF 2002 ORDER DATED 06/05/2003. (III) SREE AYYANAR SPINNING & WEAVING MILLS LTD. VS. COMMISSIONER OF INCOME TAX [2008] 301 ITR 0434 (SC) (IV) HARSHVARDHAN CHEMICALS & MINERALS LTD. VS. UNION OF INDIAN & ANR. [2002] 256 ITR 0767. 2. ON THE CONTRARY, THE LD. DR REFUTED THE CLAIM OF THE ASSESSEE AND SUBMITTED THAT AFTER AMENDMENT IN SEC.254(2) OF M.A.NO.19/ASR/2018 (A.Y.2010-11) (ARISING OUT OF ITA NO.305(ASR)/2016) SURESH KUMAR PROP. VS. ITO 3 THE ACT W.E.F., 1 ST JUNE, 2016, THE TIME LIMIT FOR RECTIFICATION OF ANY MISTAKE APPARENT FROM THE RECORD HAS BEEN REDUCED F ROM FOUR YEARS TWO SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED. FURTHER THERE IS NO PROVISION U/S 254(2) OR OTHERWISE IN THE ACT FOR CONDONATION OF DELAY IN FILI NG THE MISC. APPLICATION AND THE DATE OF LIMITATION STARTS FROM TH E END OF THE MONTH IN WHICH THE ORDER IS PASSED BUT NOT FROM THE DA TE OF RECEIPT, HENCE, THE APPLICATION FILED BY THE ASSESSEE IS LI ABLE TO BE DISMISSED. THE LD. DR ALSO RELIED UPON THE FOLLOWING JUDGMENTS. (I) VINOD SINGH VS. ITO, ITAT JAIPUR BENCH [2018] (II) SHAMSUNISHA BEGAM VS. DCIT, ITAT BANGLORE [2014] (III) SRINIVASH SRIDHAR CHAGANTY VS. ITO, WARD-2 (1), I TAT AHMEDABAD (IV) BHARAT PETROLIUM CORPORATION LTD. VS. ACIT, ITAT, MUMBAI [2012] 3. HAVING HEARD THE PARTIES AT LENGTH AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE HONBLE APEX COURT IN THE CASE OF D. SAIBABA VS. BAR COUNCIL OF INDIA & ANR.(SUPRA) ANALYZED THE POSITION OF LAW QUA COMMENCEMENT OF THE LIMITATION FOR CHALLENGING THE ORDER WHICH IS SOUGHT TO BE REVIEWED. T HE APEX COURT HELD THAT A PRACTICAL MEANING TO THE EXPRESSION Q UA SERVICE OF THE ORDER, WHEN THE SAME IS EITHER COMMUNICATED TO T HE PARTY OR IS KNOWN TO THE PARTY EITHER ACTUALLY CONSTRUCTIVELY. FURTHER THE WORDS THE DATE OF THE ORDER, MEAN AND MUST BE CONSTRUED AS MEANING THE DATE OF COMMUNICATION OR KNOWLEDGE, ACTU AL OR CONSTRUCTIVE, OR THE ORDER SOUGHT TO BE REVIEWED. M.A.NO.19/ASR/2018 (A.Y.2010-11) (ARISING OUT OF ITA NO.305(ASR)/2016) SURESH KUMAR PROP. VS. ITO 4 3.1 IT IS NOT IN CONTROVERSY THAT APPLICATION FOR RECTIF ICATION OF THE ORDER HAS TO BE FILED WITHIN SIX MONTHS FROM THE E ND OF THE MONTH IN WHICH THE ORDER WAS PASSED, AS HELD BY THIS BENCH AS WELL, IN THE CASE OF ESTATE OF SH. JAGIR SINGH BHULLAR THROUGH JASBIR SINGH BHULLAR VS. ITO, WARD-1(3) IN M.A NO.06( ASR)/2018 07.09.2018. 3.2 THE ONLY CONTROVERSY INVOLVED IN THE INSTANT CASE RELATES TO THE FILING OF THE APPLICATION FROM THE DATE OF THE CO MMUNICATION OF THE ORDER. UNDISPUTEDLY THE ASSESSEE HIMSELF IN THE A PPLICATION UNDER CONSIDERATION HAS ADMITTED THAT HE APPEARS BEFORE THE TRIBUNAL AT 3.50 PM ON 14/03/2017 AND UP TO THAT TI ME HIS APPEAL WAS ALREADY DECIDED EX-PARTE. THE ASSESSEE ALSO FIL ED AN AFFIDAVIT BY ADMITTING THE FACT TO THE EFFECT THAT W HEN HE REACHED BEFORE THE BENCH ON DATED 14/03/2017, AT THAT TIME, HIS APPEAL WAS ALREADY DECIDED EX-PARTE. AS HELD BY THE HONBLE AP EX COURT IN THE CASE OF D. SAIBABA VS. BAR COUNCIL OF INDIA & ANR.(SUPRA) THAT THE EXPRESSION ORDER' MEANS AN ORDER OF WHICH A PARTY AFFECTED HAS ACTUALLY OR CONSTRUCTIVE NOTICE. FURTHER WHEN THE ORDER IS EITHER COMMUNICATED TO THE PARTY OR IS KNOWN B Y THE PARTY EITHER ACTUALLY OR CONSTRUCTIVELY THEN THE COURT CAN ASSIGN THE MEANING TO THE EXPRESSION TO THE DATE OF THE ORDE R. IN THE INSTANT CASE THE ASSESSEE ON THE VERY SAID DATE I.E. ON 14.03.2017 WHEN THE ORDER UNDER CHALLENGE HAS BEEN PA SSED, CAME TO KNOW ABOUT THE PASSING AN ORDER EX-PARTE CONSTRUCTIVELY, HENCE IT CANNOT BE SAID AS CLAIMED BY THE ASSESSEE THAT THE ORDER UNDER CHALLENGE WAS RECEIVED OR CA ME TO THE KNOWLEDGE OF THE ASSESSEE FIRST TIME ONLY ON 09/04/2 018. IN OUR CONSIDERED VIEW THE ASSESSEE GOT THE KNOWLEDGE ABOUT THE PASSING OF THE EX-PARTE ORDER ON THE VERY SAME DATE I. E. M.A.NO.19/ASR/2018 (A.Y.2010-11) (ARISING OUT OF ITA NO.305(ASR)/2016) SURESH KUMAR PROP. VS. ITO 5 14/03/2017 AND THEREFORE WOULD HAVE FILED THE APPLI CATION WITHIN SIX MONTHS FROM THE END OF THE MONTH OF THE ORDER WAS PASSED WHICH IN THE IN THE INSTANT CASE EXPIRED ON 30 TH SEP. 2017 WHICH THE ASSESSEE HAS FILED ONLY ON 25/04/2018. IN THAT EVENT UALITY THE APPLICATION FILED BY THE ASSESSEE IS TIME BARRED AND AFFECTED BY LIMITATION PRESCRIBED BY SEC.254(2) OF THE ACT, HE NCE, NOT ENTERTAINABLE AND LIABLE TO BE DISMISSED. THE CASES RELIE D UPON BY THE ASSESSEE EXCEPT D. SAIBABA VS. BAR COUNCIL OF INDIA & ANR.(SUPRA), ARE FACTUALLY DISSIMILAR AND THEREFORE NOT DISCUSSED, AND CASES RELIED UPON BY THE REVENUE DEPARTMENT IN VIE W OF THE DECISION OF THE APPLICATION UNDER CONSIDERATION, ARE NOT DISCUSSED FOR THE SAKE OF BREVITY. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01.07.2019 . SD/- SD/- (SANJAY ARORA) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUD ICIAL MEMBER DATED: 01.07.2019 /PK/PS. COPY OF THE ORDER FORWARDED TO: 1. SH. SH. SURESH KUMAR PROP. M/S SHRI NANAK ENTERPRISES, STREET RAJA RAM KALIA, FEROZEPUR CITY 2. THE CIT, BATHINDA 3. THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER