Siemens Limited ( Through Successor in interest Simens Healthcase Diagnostics Limited ), Mumbai V. The Pr. CIT, Vadodara-2, Vadodara

MA 204/AHD/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8069 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 18-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Assessee Lawyers: SANDIP MISTRY
• Section: 254(2); 113

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) (THROUGH VIRTUAL COURT) M.A. NO: 204/AHD/2019 (IN ITA NO. 1442/AHD/2015) (ASSESSMENT YEAR: 2008-09) SIEMENS LIMITED (SUCCESSOR IN INTEREST TO SIEMENS HEALTHCARE DIAGNOSTICS LTD.) CORPORATE TAX DEPARTMENT, BIRLA AURORA, LEVEL 21, PLOT NO. 1080, DR. ANNIE BESANT ROAD, WORLI, MUMBAI-400030 PAN NO. AAACB8542M V/S THE PRINCIPAL COMMISSIONER OF INCOME TAX CIRCLE-2, BARODA (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SANDIP MISTRY , A.R. RESPONDENT BY : SHRI LALIT P. JAIN, SR. D.R. ( )/ ORDER DATE OF HEARING : 06 -11-2020 DATE OF PRONOUNCEMENT : 12 -01-2021 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED ON BEHALF OF THE ASSESSE. THE MATTER OF THE ASSESSE WAS FIXED ON 10/01/2018 BUT NONE APPEARED. THEREFORE M.A. NO. 204/AHD/2019 . A.Y. 2008-09 2 TRIBUNAL PASSED AN EX PARTE ORDER FOLLOWING THE DECISION OF ITAT DELHI BENCH IN THE CASE OF MULTIPLAN INDIA (PVT.) LTD., 38 ITD 320 (DELHI). 2. THEREAFTER ASSESSE FILED AN APPLICATION FOR RESTORATION TIME BARRED BY 343 DAYS AND REASON WAS GIVEN BY THE ASSESSE THAT EARLIER COMPANY OFFICE WAS AT 130, PANDURANG BUDHKAR MARG, WORLI, MUMBAI-400018. 3. SUBSEQUENTLY, WITH EFFECT FROM 01/06/2017, THE REGISTERED OFFICE OF THE ASSESSEE WAS SHIFTED TO BIRLA AURORA, LEVEL 21, LEVEL 21, PLOT NO. 1080, DR. ANNIE BESANT ROAD, WORLI, MUMBAI-400030. 4. AND APPLICANT FURTHER STATED THAT IT HAS NOT RECEIVED ANY NOTICE AND APPLICANT DOWNLOADED THE ITAT ORDER FROM WEBSITE ON 03/06/2019 WHILE VERIFYING THE STATUS OF CASE ONLINE. SUBSEQUENTLY, THE APPLICANT IMMEDIATELY FILED THE PRESENT MISCELLANEOUS APPLICATION ON 18/06/2019 REQUESTING THE ITAT TO RECALL THE EX-PARTE ORDER. 5. AND IN SUPPORT OF ITS CONTENTION, ASSESSE CITED AN ORDER OF DELHI HIGH COURT IN THE MATTER OF GOLDEN TIMES SERVICES (P.) LTD. VS. DCIT [2020] 113 TAXMANN.COM 524 (DELHI) WHEREIN IT IS HELD THAT ADJUDICATION ON MERITS OF CASE BY THE TRIBUNAL IS ESSENTIAL AND TRIBUNAL CANNOT DISMISS SAME SOLELY ON ACCOUNT OF NON- APPEARANCE OF A PARTY. IN ABSENCE OF PARTY, TRIBUNAL SHOULD PROCEED TO DECIDE MATTER ON MERITS AND IT CANNOT DEFEAT RIGHTS OF PARTIES ON ITS WHIMS AND FANCIES OR BY PROCEDURAL WRANGLES AND UNCERTAINTIES. 6. WE HAVE GONE THROUGH THE IMPUGNED ORDER AND HEARD BOTH THE PARTIES. SECTION 254(2) OF THE INCOME TAX ACT CONTEMPLATE THAT ITAT MAY AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) AND SHALL MAKE SUCH AMENDMENTS IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSE OR THE ASSESSING OFFICER AT ANY M.A. NO. 204/AHD/2019 . A.Y. 2008-09 3 TIME WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH ORDER WAS PASSED WITH A VIEW TO RECTIFYING ANY MISTAKE. 7. IN THE MATTER OF SANKET ESTATE & FINANCE (P.) LTD. VS. CIT [2013 216 TAXMANN.COM 21 (GUJ.) IT IS HELD THAT ITAT WHILE PASSING THE EX-PARTE ORDER IN ITS CASE HAS, INTER ALIA, RELIED ON THE DECISION OF HONBLE DELHI ITAT IN THE CASE OF CIT VS. MULTIPLAN INDIA (PVT.) LTD., 38 ITD 320 (DELHI) HAS CLEARLY DISTINGUISHED ABOVE SAID DECISION OF DELHI ITAT WHEREIN IT IS HELD THAT ITAT OUGHT TO HAVE PASS THE ORDER DECIDING THE CASE ON MERIT. 8. ASSESSEE SUBMITTED A DECISION OF CO-ORDINATE BENCH IN ASSESSEES OWN CASE WHEREIN IN SIMILAR FACTS AND CIRCUMSTANCES ORDER WAS RECALLED IN M.A. NO. 205/AHD/2019 (IN ITA NO. 812/AHD/2017) FOR ASSESSMENT YEAR 2008-09. SINCE ASSESSE HAS EXPLAINED THE DELAY AS OFFICE ADDRESS WAS SHIFTED AND NOTICE OF THE TRIBUNAL RETURNED BACK WITH THE REMARK OF THE POSTAL DEPARTMENT AS NONE HAVING CLAIMED THE SAME. 9. THE COURTS, AS HELD BY THE SUPREME COURT MUST KEEP IN MIND, WHILE DEALING WITH LIMITATION PETITION, THAT THERE IS A DISTINCTION BETWEEN THE DELAY FOR A PLAUSIBLE REASON AND DELAY BECAUSE OF INACTION OR NEGLIGENCE WHICH DEPRIVES A PARTY OF THE PROTECTION OF SECTION 5 OF THE LIMITATION ACT. 10. SINCE ASSESSE DID NOT RECEIVE ANY NOTICE AND OFFICE OF THE ASSESSE WAS SHIFTED AND RESPECTFULLY FOLLOWING THE JURISDICTIONAL HIGH COURT ORDER AND PARITY WITH THE ITAT ORDER, WE ALLOW MISCELLANEOUS APPLICATION FILED BY THE APPLICANT. M.A. NO. 204/AHD/2019 . A.Y. 2008-09 4 11. IN THE RESULT, MISC., APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 12 - 01- 2021 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 12 /01/2021 RAJESH COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD