K S VELUSAMY, TAMBARAM V. ITO NCW 22 (5), TAMBARAM

MA 209/CHNY/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3783 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-11-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 09-08-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R ANITA
• Assessee Lawyers: R PADMANABHAN
• Keywords: Period of limitation
• Section: 254(2)

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL A BENCH, CHENNAI , . , BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY, JUDICIAL MEMBER M.P. NO. 209/CHNY/2019 [IN I.T.A. NO. 490/CHNY/2018] ASSESSMENT YEAR: 2012-13 SHRI K.S. VELUSAMY, PROP. M/S. SVS ENTERPRISES, NO. 41, AYYASAMY STREET, SHANMUGAM ROAD, WEST TAMBARAM, CHENNAI 45. [PAN:AGUPV1463G] VS. THE INCOME TAX OFFICER, NON CORPORATE WARD 22(5), TAMBARAM. (PETITIONER) (R ESPONDENT ) PETITIONER BY : SHRI R. PADMANABHAN, C.A. RESPONDENT BY : MS. R. ANITA, JCIT / DATE OF HEARING : 18.10.2019 /DATE OF PRONOUNCEMENT : 04.11.2019 / O R D E R PER DUVVURU RL REDDY, JUDICIAL MEMBER: BY MEANS OF PRESENT MISCELLANEOUS PETITION, THE ASSESSEE SEEKS TO RECALL THE ORDER PASSED BY THE TRIBUNAL IN I.T.A. NO.490/CHNY/2018 DATED 20.11.2018. BY REFERRING TO THE PETITION, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE TRIBUNAL DECIDED THE ABOVE APPEAL OF THE REVENUE WITHOUT THE PRESENCE OF ASSESSEES AUTHORIZED REPRESENTATIVE IS BAD IN LAW AND PRAYED FOR RECALLING THE ORDER OF THE TRIBUNAL. IT WAS FURTHER SUBMISSION THAT THE ASSESSEES EARLIER APPEAL FOR THE SAME ASSESSMENT YEAR 2012-13 IS M.P. NO. 209/CHNY/19 2 PENDING IN I.T.A. NO. 2552/CHNY/2018 BEFORE THE C BENCH OF THE TRIBUNAL AND WITHOUT CLUBBING THE CROSS APPEALS AND ADJUDICATING BOTH THE APPEALS TOGETHER IS BAD IN LAW AND PRAYED FOR RECALLING THE ORDER PASSED BY THE TRIBUNAL AGAINST THE APPEAL FILED BY THE REVENUE. 2. PER CONTRA, LD. DR SUBMITTED THAT MISCELLANEOUS PETITION WAS FILED MUCH AFTER THE TIME LIMIT SPECIFIED IN SECTION 254(2) OF THE ACT AND PLEADED THAT THE PLEA OF THE ASSESSEE CANNOT BE ENTERTAINED IN VIEW OF THE STATUTE. 3. WE HAVE HEARD BOTH THE SIDES, PERUSED THE PETITION FILED BY THE ASSESSEE AND GONE THROUGH THE ORDER OF THE TRIBUNAL. AS PER THE PRESENT PRACTICE FOLLOWED BY THE TRIBUNAL, THE APPEAL ORDER PRONOUNCED IN THE OPEN COURT AND THE TIME LIMIT FOR FILING OF MISCELLANEOUS PETITION SHALL BE RECKONED FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED, IS SIX MONTHS FOR SEEKING RECALL I.E., PARTIES ARE ENTITLED TO SEEK RECTIFICATION OF THE SAID ORDER WITHIN SIX MONTHS UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961, AS AMENDED W.E.F. 01.06.2016 WHICH READS AS UNDER:- 254 (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED, WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR AS THE ASSESSING OFFICER. THE ABOVEMENTIONED PROVISION EMPOWERS THE TRIBUNAL TO RECTIFY ITS MISTAKE IF THE ASSESSEE OR THE ASSESSING OFFICER BROUGHT THE SAME TO THE NOTICE OF THE M.P. NO. 209/CHNY/19 3 TRIBUNAL WITHIN THE PERIOD OF LIMITATION I.E., SIX MONTHS IN WHICH THE ORDER WAS PASSED. IN THE INSTANT CASE, THE ORDER WAS PASSED/ PRONOUNCED ON 20.11.2018 AND FROM THE END OF THE MONTH; THE PERIOD OF SIX MONTH EXPIRES ON 30.05.2019. THE ASSESSEE FILED THE PRESENT MISCELLANEOUS PETITION ON 09.08.2019 RECALLING THE ORDER OF THE TRIBUNAL DATED 20.11.2018, THEREBY THE MP FILED BY THE PETITIONER IS BARRED BY LIMITATION OF 2 MONTHS AND NINE DAYS. 4. FURTHER, AS AGITATED NOW BY THE PETITIONER THAT THE ASSESSEES APPEAL IN I.T.A. NO. 2552/CHNY/2018 IS PENDING BEFORE THE C BENCH OF THE TRIBUNAL AND WITHOUT CLUBBING THE CROSS APPEAL AND ADJUDICATING BOTH THE APPEALS IS BAD IN LAW IS NOT ACCEPTABLE, BECAUSE, WHEN THE REVENUES APPEAL CAME UP FOR HEARING ON 08.10.2018, THE LD. COUNSEL FOR THE ASSESSEE HAS SOUGHT ONLY FOR ADJOURNMENT AND ENDORSED IN THE ORDER SHEET HAVING NOTED THE NEXT DATE OF HEARING OF THE REVENUES APPEAL AND NO SUBMISSION OF PENDENCY OF ASSESSEES APPEAL WAS BROUGHT TO THE NOTICE OF THE BENCH OR THE ASSESSEE OR HIS AUTHORIZED REPRESENTATIVE FILED ANY APPLICATION FOR CLUBBING THE CROSS APPEAL FOR HEARING AND ADJUDICATION. WHEN THE BENCH WAS NOT AWARE OF THE FILING OF CROSS APPEAL BY THE ASSESSEE AND WHEN THERE WAS NO REPRESENTATION FROM ASSESSEES SIDE ON THE DAY OF HEARING OF REVENUES APPEAL ON 13.11.2018, THE BENCH HAD NO OTHER OPTION BUT TO CONCLUDE THE REVENUES APPEAL AFTER HEARING TO THE LD. DR. UNDER THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT THERE IS NO MISTAKE APPARENT ON THE M.P. NO. 209/CHNY/19 4 ORDER PASSED BY THE TRIBUNAL WARRANTING RECTIFICATION/RECALLING THE ORDER. MOREOVER, THE PRESENT MP FILED BY THE PETITIONER IS BARRED BY LIMITATION OF 2 MONTHS AND NINE DAYS, AND THUS, ON BOTH COUNTS, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE BEFORE THE TRIBUNAL IS NOT MAINTAINABLE AND ACCORDINGLY, THE PETITION FILED BY THE ASSESSEE STANDS DISMISSED. 5. IN THE RESULT, THE MP FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THE 04 TH NOVEMBER, 2019 AT CHENNAI. SD/- SD/- (INTURI RAMA RAO) ACCOUNTANT MEMBER (DUVVURU RL REDDY) JUDICIAL MEMBER CHENNAI, DATED, THE 04.11.2019 VM/- /COPY TO: 1. / APPELLANT, 2. / RESPONDENT, 3. ( ) /CIT(A), 4. /CIT, 5. /DR & 6. /GF.