M/s. Reform Chain & Tools Pvt. Ltd., Kolkata V. ITO, Ward - 2(1), , Kolkata

MA 204/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0074 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 30-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B, KOLKATA BEFORE SH.S.S.VISWANETHRA RAVI, JUDICIAL MEMBER & SH.A.L.SAINI, ACCOUNTANT MEMBER M.A.NO.-204/KOL/2018 [IN ITA NO.741/KOL/2016] (ASSESSMENT YEAR-2009-10) ORDER PER S.S. VISWANETHRA RAVI, JUDICIAL MEMBER BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE INTENDS TO RECALL THE EX-PARTE ORDER DATED 27.03.2018. 2. IT IS NOTED THAT THE REGISTRY, ITAT, KOLKATA BENCHES RAISED AN OBJECTION FOR NOT FILING PETITION TO CONDONE THE DELAY OF 30 DAYS. LD.AR SUBMITS THAT THE EX-PARTE ORDER DATED 27.03.2018 WAS RECEIVED BY THE ASSESSEE ON 17.04.2018 AND THE ASSESSEE FILED PRESENT M.A. ON 30.10.2018. LD.AR SUBMITS THAT THE MANAGING DIRECTOR, SH. BASANT SAHA, THE KEY PERSON OF THE PETITIONER COMPANY WAS SUFFERED FROM KINDNEY AILMENTS AND HE WAS ADMITTED TO HOSPITAL AND PUT UNDER REGULAR DIALYSIS AND IN THE ABSENCE OF PROPER PERSON COULD NOT REPRESENT THE CASE ALONGWITH REQUISITE DOCUMENTS. THE LD.AR FILED MEDICAL RECORD BELONGING TO SH. BASANT SAHA RUNNING INTO 8 PAGES AND ARGUED THAT THE EX-PARTE ORDER MAY BE RECALLED. THE LD.DR VEHEMENTLY OPPOSED THE CONTENTION OF THE LD.AR AND THE REASONS STATED FOR NOT PUTTING APPEARANCE BEFORE THE TRIBUNAL AND FOR DELAY FILING THE M.A. APPLICATION. M/S. REFORM CHAIN & TOOLS PVT.LTD., 43, MOTISIL STREET, KOLKATA-700013. PAN-AADCR8091C VS ITO, WARD-2(1), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069. (APPELLANT) (RESPONDENT) APPELLANT BY SUBHABRATA DUTTA, CA RESPONDENT BY ROBIN CHOUDHARY, ADDL.CIT DR DATE OF HEARING 08.02.2019 DATE OF PRONOUNCEMENT 29.03.2019 M.A.NO.-204/KOL/2018 [IN ITA NO.741/KOL/2016] (ASSESSMENT YEAR-2009-10) PAGE | 2 3. HEARD BOTH PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY M.A. WAS FILED WITH A DELAY OF 30 DAYS AND THE REASONS STATED DURING THE COURSE OF ARGUMENTS FOR CONDONATION OF DELAY IS APPEARED TO BE BONAFIDE IN TERMS OF THE DOCUMENTARY EVIDENCE FILED BEFORE US BY WAY OF PAPER BOOK. BUT, HOWEVER, THE OBJECTION RAISED BY THE REGISTRY, ITAT, KOLKATA BENCHES IS IN RESPECT OF NOT FILING DELAY CONDONATION PETITION. IN ACTUAL EFFECT, THIS TRIBUNAL HAS NO POWER TO CONDONE THE DELAY IF AN M.A. FILED BEYOND SIX MONTHS BY ANY OF THE PARTIES AS THE CASE MAY BE ONLY IN RESPECT OF RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD. IN THE PRESENT CASE, THE M.A. WAS FILED PRAYING TO RECALL THE EX-PARTE ORDER PASSED BY THIS TRIBUNAL. SO, THEREFORE, IN OUR OPINION, THERE IS NO MISTAKE APPARENT ON THE RECORD ATTRACTING SUB-SECTION (2) OF SECTION 254 OF THE ACT. THEREFORE, FILING A PETITION TO CONDONE DOES NOT ARISE AT ALL. THUS, THE OBJECTION OF THE REGISTRY, ITAT, KOLKATA BENCHES IN NOT FILING THE CONDONATION PETITION IS OVER-RULED. 4. RULE 24 OF INCOME TAX APPELLATE TRIBUNAL RULES, 1963 EXPLAINS THAT THIS TRIBUNAL HAS TO DISPOSE OFF THE APPEAL ON MERITS IN THE ABSENCE OF APPELLANT. AS DISCUSSED ABOVE IN THE PRESENT CASE, THIS TRIBUNAL DISMISSED THE APPEAL FOR NON-APPEARANCE OF THE ASSESSEE OR ITS AUTHORIZED REPRESENTATIVE. THEREFORE, IN VIEW OF THE ARGUMENTS ADVANCED BY THE LD.AR DURING THE COURSE OF HEARING, THE REASONS STATED FOR NON-APPEARANCE BEFORE THIS TRIBUNAL ARE BONAFIDE. THEREFORE, WE DEEM IT PROPER TO RECALL THE EX- PARTE ORDER DATED 27.03.2018 PASSED BY THIS TRIBUNAL AND RESTORE THE APPEAL IN ITA NO.741/KOL/2016 TO THE FILE. THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR A HEARING BEFORE REGULAR BENCH. THE PARTIES MAY BE INFORMED ACCORDINGLY. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.03.2019. SD/- SD/- (A.L.SAINI) (S.S.VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBER [ M.A.NO.-204/KOL/2018 [IN ITA NO.741/KOL/2016] (ASSESSMENT YEAR-2009-10) PAGE | 3 DATE:- 29.03.2019 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT- M/S. REFORM CHAIN & TOOLS PVT.LTD., 43, MOTISIL STREET, KOLKATA-700013. 2. RESPONDENT- ITO, WARD-2(1), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069. 3. CIT-KOLKAT A 4. CIT(APPEALS)-KOLKATA 5. DR: ITAT -KOLKATA BENCHES BY ORDER AR/H.O.O ITAT, KOLKATA