Garud Credit & Holding Pvt Ltd, Kolkata V. I.T.O Wd - 9(2),kolkata, Kolkata

MA 20/KOL/2022

AI Insights

The case involves Garud Credit & Holding Pvt. Ltd., the appellant, who filed a Miscellaneous Application against an ex-parte order of the Tribunal concerning the Assessment Year 2009-10. The Tribunal had initially decided the appeal on merit ex-parte due to the non-appearance of the assessee, who failed to obtain certified copies of necessary documents from the Income Tax Department in time for the hearing. The assessee argued that the delay was due to the Tribunal's requirement to obtain these documents, which they pursued diligently but only received after the Tribunal's decision. The Tribunal, upon reviewing the circumstances and the legal provisions under Rule 24 of the Income Tax Appellate Tribunal Rules, 1963, decided to set aside the ex-parte order and restore the appeal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 128759 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 17-11-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 23-06-2022
• Other Referred Cases: Golden Times Services (P) Ltd. vs. DCIT, Pradeep Kumar Jindal vs. PCIT, PCIT vs. ITAT
• Laws Referred To: Income Tax Act, 1961, Income Tax Appellate Tribunal Rules, 1963
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Period of limitation; Reasonable cause; Time period of passing order
• Section: 263; 254(2); 48

Judgement Text

आयकर अपीलीय अधिकरण कोलकाता 'डी' पीठ, कोलकाता म ें IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘D’ BENCH, KOLKATA श्री संजय गग ग , न्याधयक सदस्य एवं डॉ. मनीष बोरड, ल े खा सदस्य क े समक्ष Before SRI SANJAY GARG, JUDICIAL MEMBER & DR. MANISH BORAD, ACCOUNTANT MEMBER M.A. No. 20/KOL/2022 Arising out of I.T.A. No.: 1270/KOL/2013 Assessment Year: 2009-10 Garud Credit & Holding Pvt. Ltd..............................Appellant [PAN: AAACG 9791 P] Vs. ITO, Ward-9(2), Kolkata........................................Respondent Appearances by: Sh. Veekaas S. Sharma, A/R, appeared on behalf of the Assessee. Sh. P.P. Barman, Addl. CIT, appeared on behalf of the Revenue. Date of concluding the hearing : January 18 th , 2023 Date of pronouncing the order : January 18 th , 2023 ORDER Per Manish Borad, Accountant Member: This Miscellaneous Application at the instance of the assessee is directed against the order of this Tribunal in ITA No. 1270/KOL/2013 dated 03.11.2015 pertaining to Assessment Year 2009-10. M.A. No. 20/KOL/2022 Arising out of I.T.A. No.: 1270/KOL/2013 Assessment Year: 2009-10 Garud Credit & Holding Pvt. Ltd. Page 2 of 7 2. Registry has informed that the present Miscellaneous Application is time barred by 2214 days. On perusal of condonation application filed by the assessee and considering the opposition made ld. D/R, we observe that though, the assessee has contended that there is no limitation under Rule 24 of the Income Tax Appellate Tribunal Rules, 1963, but even if he considers the application u/s 254(2) of the Act, we notice that this Miscellaneous Application has been filed on 28.06.2022. The assessee was having four years to file the Miscellaneous Application u/s 254(2) of the Act as applicable at that point of time i.e. four years from the date of the order which was subsequently amended by Finance Act, 2016 w.e.f. 01.04.2016 limiting the period to six months in place of four years. The date of the impugned order is 03.11.2015. The assessee came to know about the impugned order on 30.03.2016. The assessee had to file Miscellaneous Application within four years i.e. up to 29.03.2020. From 15.03.2020 to 28.02.2022 the limitation period has been excluded by Hon'ble Supreme Court of India on account of COVID-19 restriction in suo motu Writ Petition (Civil) No(s) 3/2020 dated 23.03.2020 and 10.01.2022 which was further extended for 90 days till 29.05.2022. Since the assessee could not file Miscellaneous Application by 29.03.2020 and the COVID-19 restrictions came into effect from 15.03.2020, the assessee further got time of 15 days and the last date for filing the Miscellaneous Application in time was 13.06.2022 and the instant Miscellaneous Application has been filed on 28.06.2022. So, we find that there is a minor delay of only 15 days. Therefore, looking to the facts and circumstances of the case and the reasonable M.A. No. 20/KOL/2022 Arising out of I.T.A. No.: 1270/KOL/2013 Assessment Year: 2009-10 Garud Credit & Holding Pvt. Ltd. Page 3 of 7 cause mentioned by the assessee, we condone the said delay and admit the Miscellaneous Application for adjudication. 3. Ld. Counsel for the assessee made prayer for restoration of appeal in terms of Rule 24 of the Income Tax Appellate Tribunal Rules, 1963 and stated that the impugned order is ex-parte, decided on merit and the assessee had a reasonable cause for not being able to plead before the Hon'ble Tribunal. It is submitted that when the case of the assessee approached the Tribunal, during the course of one of the hearings, this Tribunal directed the assessee to obtain certified copies of the documents lying in the assessment records. The assessee moved an application to ld. D/R to provide certified copies of the details called for by this Hon'ble Tribunal. Thereafter, the assessee deposited Rs. 1,000/- with the Income Tax Department for obtaining the certified copies. In the meantime, the case of the assessee again came for hearing on 02.11.2015 but since the assessee did not receive the certified copies from the Income Tax Department it again sought adjournment but the same was declined by this Hon'ble Tribunal and vide consolidated order dated 03.11.2015 for multiple assessees, the appeal was decided on merit ex-parte qua the assessee. Ld. Counsel for the assessee further, submitted that the certified copies of documents called for by this Tribunal were finally received in the month of March, 2022 from Income Tax Department and thereafter, this Miscellaneous Application has been filed. Referring to various decisions mainly the judgment of the Hon'ble High Court of Delhi in the case of Golden Times Services (P) Ltd. vs. DCIT, (2020) 422 ITR 102 (Del), Pradeep Kumar M.A. No. 20/KOL/2022 Arising out of I.T.A. No.: 1270/KOL/2013 Assessment Year: 2009-10 Garud Credit & Holding Pvt. Ltd. Page 4 of 7 Jindal vs. PCIT, (2021) 432 ITR 48 (Del) and the judgment of Hon'ble High Court of Bombay in the case of PCIT vs. ITAT, (2020) 425 ITR 581 (Bom) which are placed before us in the form of compilation of case laws. Referring to Rule 24 of the Income Tax Appellate Tribunal Rules, 1963 it was submitted that “If an appeal is disposed off on merits ex-parte qua the assessee and afterwards the Tribunal finds that there was sufficient cause for his non- appearance, then the Tribunal shall make an order setting aside the ex-parte order and restore the appeal.” 4. On the other hand, ld. D/R vehemently argued stating that sufficient opportunity was given to the assessee by this Tribunal and there is no apparent mistake in the impugned order. 5. We have heard rival contentions and perused the records placed before us. Considering the facts referred herein above stated by ld. Counsel for the assessee, we notice that before the final date of hearing of the assessee’s appeal on 02.11.2015, on previous occasions the assessee appellant was directed by this Tribunal to furnish certified copies of various documents available in the assessment records. The assessee in compliance thereto filed an application to ld. D/R and thereafter, also deposited the requisite fees in Government Treasury for obtaining the certified copies and kept on pursuing the same. In the meantime, the case came up for hearing on 02.11.2015 and an adjournment application was filed by the authorised representative of the assessee seeking time since the documents as called for by this Tribunal still could not be obtained. However, this Tribunal rejected the adjournment application and heard the appeal with M.A. No. 20/KOL/2022 Arising out of I.T.A. No.: 1270/KOL/2013 Assessment Year: 2009-10 Garud Credit & Holding Pvt. Ltd. Page 5 of 7 the assistance of ld. D/R and the available records and decided the issue relating to the revisionary proceedings carried out u/s 263 of the Act against the assessee along with various other assessees by ways of the consolidated order dated 03.11.2015. 6. We observe that when the details were called for by this Tribunal from the assessee and the efforts were being made by the assessee to obtain those documents which is discernible and verifiable from the details and copies of letters filed in the paper book, this Tribunal ought to have considered the adjournment application of the assessee favourably and looking to the particular facts pertaining to the assessee should not have passed the order ex-parte qua the assessee along with different assessee’s in the consolidated order dated 03.11.2015. At this juncture, we would like to take note of Rule 24 of Income Tax Appellate Tribunal Rules, 1963 which reads as follows: “24. Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorised representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent: Provided that where an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance, when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex parte order and restoring the appeal.” 7. Now, examining the facts of the instant Miscellaneous Application in light of the above Rule, we notice that the proviso to Rule 24 of Income Tax Appellate Tribunal Rules, 1963 applies in the case of the assessee so much so that in the case of the assessee M.A. No. 20/KOL/2022 Arising out of I.T.A. No.: 1270/KOL/2013 Assessment Year: 2009-10 Garud Credit & Holding Pvt. Ltd. Page 6 of 7 also the case was heard for non-appearance and decided on merit but the assessee had sufficient cause for his non-appearance because the documents as directed by this Tribunal still could not be obtained up to the date of hearing. Further, drawing support from the judgment of Hon'ble High Court of Delhi in the case of Golden Times Services (P) Ltd. (supra), Pradeep Kumar Jindal (supra), we are of the considered view that there is a mistake apparent on record in the impugned order since the assessee had sufficient cause for not able to plead on the date of hearing and now, since the assessee has obtained the requisite documents as directed by this Tribunal and are placed in the form of paper book before us, we recall the impugned order of this Tribunal dated 03.11.2015, allow the Miscellaneous Application filed by the assessee and restore the appeal to its original number. 8. Further during the course of hearing, ld. Counsel for the assessee requested for hearing the appeal on merits to which no objection was made by ld. D/R. We, therefore, proceed to hear the main appeal. 9. In the result, the Miscellaneous Application filed by the assessee is allowed as per terms indicated above. Kolkata, the 18 th January, 2023 Sd/- Sd/- [Sanjay Garg] [Manish Borad] Judicial Member Accountant Member Dated: 18.01.2023 Bidhan (P.S.) M.A. No. 20/KOL/2022 Arising out of I.T.A. No.: 1270/KOL/2013 Assessment Year: 2009-10 Garud Credit & Holding Pvt. Ltd. Page 7 of 7 Copy of the order forwarded to: 1. Garud Credit & Holding Pvt. Ltd., D.J.Shah & Co., 2, Elgin Rd., Kolkata – 700 020. 2. ITO, Ward-9(2), Kolkata. 3. CIT(A)-III, Kolkata. 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. True copy By order Assistant Registrar ITAT, Kolkata Benches Kolkata