Shri Suresh Kumar Jain, Indore V. The I.T.O., Indore

MA 2/IND/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4482 (ITAT-INDORE)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-03-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-03-2010
• Assessment Year: 1994-1995
• Appeal Filed On: 11-02-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Assessee Lawyers: P N DIXIT
• Keywords: Opportunity of being heard; Period of limitation

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI V.K. GUPTA, ACCOUNTANT MEMBER M.A. NOS.2 & 3/IND/2010 (ARISING OUT OF ITA NOS.32 & 33/IND/04) A.YS. 1994-95 & 1995-96 SURESH KUMAR JAIN DEWAS ::: APPLICANT PAN AAZPJ7834J VS INCOME TAX OFFICER 4(2) INDORE ::: RESPONDENT APPLICANT BY : SHRI P.N. DIXIT RESPONDENT BY: SMT. APARNA KARAN, SR. DR O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER BOTH THESE MISCELLANEOUS PETITIONS U/S 254(2) OF T HE ACT ARE BY THE ASSESSEE FOR ASSESSMENT YEARS 1994-95 AND 1995-96 S EEKING RECALLING OF THE ORDER OF THE TRIBUNAL DATED 24.5.2005 ON THE GROUND THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL ERRED IN NOT DECIDING THE GROUND NOS. 2 TO 4 WHICH ARE GROUNDS ON MERITS OF T HE ADDITIONS MADE BY THE AO WHICH FULLY SUPPORT THE SUBMISSIONS ON THE LEGAL GR OUND. 2 2. AT THE OUTSET, THE LEARNED SR.DR OBJECTED TO TH E PETITIONS OF THE ASSESSEE ON THE GROUND THAT BOTH THESE PETITIONS ARE FILED A FTER A PERIOD OF FOUR YEARS, THEREFORE, SHOULD BE DISMISSED STRAIGHT WAY. ON A QUERY FROM THE BENCH, THE LD. COUNSEL FOR THE ASSESSEE WAS FAIR ENOUGH TO ADMIT T HAT BOTH THESE PETITIONS HAVE BEEN FILED BEYOND THE PERIOD OF LIMITATION. 3. IN VIEW OF THE AFORESAID ASSERTION AND WITHOUT G OING INTO THE MERITS OF THESE PETITIONS AND ALSO SINCE THE MAINTAINABILITY HAS BEEN CHALLENGED BY THE REVENUE, NOW THE QUESTION ARISES WHETHER THESE PETI TIONS CAN BE ENTERTAINED OR NOT, BEING FILED BEYOND THE PERIOD OF LIMITATION OF FOUR YEARS. BEFORE COMING TO ANY CONCLUSION, WE ARE REPRODUCING HEREUNDER THE PR OVISIONS OF SECTION 254 OF THE ACT :- ORDERS OF APPELLATE TRIBUNAL. 254. (1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH T HE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD , PASS SUCH ORDERS THEREON AS IT THINKS FIT 45 . (1A) 46 [***] (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER , WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD 47 , AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1), AND SHALL MAKE SUCH AMENDMENT 47 IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE 48 [ASSESSING] OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTH ERWISE INCREASING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNA L HAS GIVEN NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BE ING HEARD : 49 [ PROVIDED FURTHER THAT ANY APPLICATION FILED BY THE ASSESSEE IN THIS SUB-SECTION ON OR AFTER THE 1ST DA Y OF OCTOBER, 1998, SHALL BE ACCOMPANIED BY A FEE OF FIF TY RUPEES.] 3 50 [(2A) IN EVERY APPEAL, THE APPELLATE TRIBUNAL, WHER E IT IS POSSIBLE, MAY HEAR AND DECIDE SUCH APPEAL WITHIN A PERIOD OF FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH SUCH APPEAL IS FILED UNDER SUB-SECTION (1) 51 [OR SUB-SECTION (2)] OF SECTION 253 : 52 [ PROVIDED THAT THE APPELLATE TRIBUNAL MAY, AFTER CONSIDERING THE MERITS OF THE APPLICATION MADE BY T HE ASSESSEE, PASS AN ORDER OF STAY IN ANY PROCEEDINGS RELATING TO AN APPEAL FILED UNDER SUB-SECTION (1) OF SECTION 253 , FOR A PERIOD NOT EXCEEDING ONE HUNDRED AND EIGHTY DAYS FR OM THE DATE OF SUCH ORDER AND THE APPELLATE TRIBUNAL SHALL DISPOSE OF THE APPEAL WITHIN THE SAID PERIOD OF STAY SPECIF IED IN THAT ORDER: PROVIDED FURTHER THAT WHERE SUCH APPEAL IS NOT SO DISPOSED OF WITHIN THE SAID PERIOD OF STAY AS SPECIFIED IN T HE ORDER OF STAY, THE APPELLATE TRIBUNAL MAY, ON AN APPLICATION MADE IN THIS BEHALF BY THE ASSESSEE AND ON BEING SATISFIED THAT THE DELAY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABL E TO THE ASSESSEE, EXTEND THE PERIOD OF STAY, OR PASS AN ORD ER OF STAY FOR A FURTHER PERIOD OR PERIODS AS IT THINKS FIT; S O, HOWEVER, THAT THE AGGREGATE OF THE PERIOD ORIGINALLY ALLOWED AND THE PERIOD OR PERIODS SO EXTENDED OR ALLOWED SHALL NOT, IN ANY CASE, EXCEED THREE HUNDRED AND SIXTY-FIVE DAYS AND THE APPELLATE TRIBUNAL SHALL DISPOSE OF THE APPEAL WITH IN THE PERIOD OR PERIODS OF STAY SO EXTENDED OR ALLOWED: 53 [ PROVIDED ALSO THAT IF SUCH APPEAL IS NOT SO DISPOSED OF WITHIN THE PERIOD ALLOWED UNDER THE FIRST PROVISO O R THE PERIOD OR PERIODS EXTENDED OR ALLOWED UNDER THE SEC OND PROVISO, WHICH SHALL NOT, IN ANY CASE, EXCEED THREE HUNDRED AND SIXTY-FIVE DAYS, THE ORDER OF STAY SHALL STAND VACATED AFTER THE EXPIRY OF SUCH PERIOD OR PERIODS, EVEN IF THE DELAY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABLE TO T HE ASSESSEE.]] (2B) THE COST OF ANY APPEAL TO THE APPELLATE TRIBUN AL SHALL BE AT THE DISCRETION OF THAT TRIBUNAL.] (3) THE APPELLATE TRIBUNAL SHALL SEND A COPY OF ANY ORDERS PASSED UNDER THIS SECTION TO THE ASSESSEE AND TO TH E 54 [ 55 [***] COMMISSIONER]. (4) 56 [SAVE AS PROVIDED IN THE NATIONAL TAX TRIBUNAL ACT, 2005], ORDERS PASSED BY THE APPELLATE TRIBUNAL ON A PPEAL SHALL BE FINAL. ON PERUSAL OF SUB-SECTION (2) OF SECTION 254 OF THE ACT, IT IS CLEAR THAT THE APPELLATE TRIBUNAL IS EMPOWERED TO RECTIFY ANY MIST AKE APPARENT FROM RECORD OR AMENDING ANY ORDER PASSED BY IT UNDER SUB-SECTION ( 1) WITHIN A PERIOD OF FOUR 4 YEARS FROM THE DATE OF THE ORDER. IN THE PRESENT CASE, T HE ORDER OF THE TRIBUNAL WAS PASSED ON 24.5.2005 AND THE MISCELLANEOUS PETIT IONS WERE FILED BY THE ASSESSEE ON 11.2.2010 I.E. AFTER THE PERIOD OF FOUR YEARS. IN THIS BACKGROUND, THE TRIBUNAL HAS NO JURISDICTION EVEN TO ENTERTAIN THES E PETITIONS. EVEN OTHERWISE, THE POWERS OF THE TRIBUNAL U/S 254(2) OF THE ACT AR E VERY LIMITED. HOWEVER, WITHOUT GOING INTO THE MERITS OF THESE PETITIONS, S INCE THESE PETITIONS HAVE BEEN FILED BEYOND THE PERIOD OF LIMITATION I.E. FOUR YEA RS AFTER THE PASSING OF THE ORDER, CONSEQUENTLY BOTH THESE PETITIONS DESERVE TO BE DISMISSED ON THE ISSUE OF LIMITATION ONLY. FINALLY, BOTH THESE PETITIONS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES FROM BOTH THE SIDES AT THE CONCLUSI ON OF THE HEARING ON 19 TH MAY, 2010. (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER 19 TH MARCH, 2010 COPY TO APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE *DBN/- 5 ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES FROM BOTH THE SIDES AT THE CONCLUSI ON OF THE HEARING ON 19 TH MARCH, 2010. SD SD (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER 19 TH MARCH, 2010 COPY TO APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE *DBN/-