BOBBY LEASE FINANCE LTD, Baroda V. THE JT CIT (ASSTT)SR-1, Ahmedabad

MA 22/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8458 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 22-06-2012
• Assessment Year: misc
• Appeal Filed On: 14-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI D.K.TYAGI, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER M.A.NO.22/AHD/2011 IN I.T.(SS). NO.30/AHD/2001 (BLOCK PERIOD 01.01.1985 TO 15.12.1995) M/S. BOBBY LEASE FINANCE LIMITED, BARODA VS. JCIT, SR-1, BARODA PAN/GIR NO. : (APPELLANT) .. (RESPONDENT) APPELLANT BY: MS. URVASHI SHODHAN, AR RESPONDENT BY: SHRI RAHUL KUMAR, SR. DR. DATE OF HEARING: 22.6.2012 DATE OF PRONOUNCEMENT: 06.07.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE AND THE SAME WAS FILED ON 14.02.2011 ALTHOUGH THE TRIBUNAL ORDER, AGAINST WHICH THIS MISCELLANEOUS APPLICATION IS FILED, IS DATED 2 8.03.2006 AND THERE IS NOTING OF THE REGISTRY THAT THIS MISCELLANEOUS APPL ICATION IS TIME BARRED BY 282 DAYS. IN THE COURSE OF HEARING BEFORE US, IT W AS SUBMITTED BY THE LD. A.R. THAT THE DATE OF ORDER SHOULD BE THE DATE OF C OMMUNICATION OF THE ORDER AND IN SUPPORT OF THIS, RELIANCE WAS PLACED O N THE JUDGEMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF HOUSING BOARD, HARYANA VS HOUSING BOARD COLONY WELFARE ASSOCIATION AND OTHERS AS REPORTED IN (1995) (HON'BLE SUPREME COURT)-GJX-0776-S.C. AT TH IS JUNCTURE, IT WAS M.A.NO. 22 /AHD/2011 2 POINTED OUT BY THE BENCH THAT IN SOME OTHER CASE, T HIS VIEW HAS ALREADY TAKEN BY THE TRIBUNAL AFTER CONSIDERING VARIOUS JUD GEMENTS THAT FOR THE PURPOSE OF SECTION 254(2) OF THE INCOME TAX ACT, 19 61, THE DATE OF ORDER SHOULD BE THE DATE OF ORDER ONLY AND NOT THE DATE O F COMMUNICATION OF THE ORDER. THE LD. D.R. SUBMITTED THAT THIS MISCELLANE OUS APPLICATION OF THE ASSESSEE IS NOT ADMISSIBLE BECAUSE IT IS SUBMITTED BEYOND 4 YEARS FORM THE DATE OF THE TRIBUNAL ORDER. 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT UNDER IDENTICAL FACTS, THIS ISSUE WAS DECIDED BY THE TRIB UNAL AGAINST THE ASSESSEE IN THE CASE OF M/S. AGNI BRIQUETTE PVT. LTD. VS ACI T IN MISCELLANEOUS APPLICATION 72& 73 /AHD/2012 AND THE RELEVANT PARAS OF THIS MISCELLANEOUS APPLICATION ORDER ARE REPRODUCED BELO W: 6. WE HAVE HEARD BOTH THE SIDES AT SOME LENGTH. WE HAVE CAREFULLY PERUSED THE PRECEDENTS CITED BUT FOUND TO BE NOT APPLICABLE. WE FIND NO FORCE IN THIS MISCELLANEOUS PETITION PRIMARILY BECAUSE OF THE REASON THAT THE STATUTE DO NOT AUTHORIZE US TO ENTERTAIN ANY PETITION WHICH HAS BEEN FILED U/S. 254(2) AT ANY TIME BEYOND FOUR YEARS FORM THE DATE OF THE ORDER. FOR READY REFERENCE; THE RELEVANT SECTION IS REPRODUCED BELOW :- SECTION 254 (2):- THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHI N FOUR YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RE CTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB- SECTION (1) AND SHALL MAKE SUCH AMENDMENT IF THE MI STAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE [ASSESSING OFFICE R:] 6.1. IF WE COMPARE THE WORDS OF THE PROVISIONS OF S ECTION 254(2) OF THE I.T. ACT WITH FEW OTHER LIKE NATURE PROVISIONS OF THIS VERY ACT WHERE A TIME PERIOD IS PRESCRIBED IN FILING OF AN A PPEAL, THEN WE HAVE NOTICED THAT IN THOSE PROVISIONS, THE STATUTE HAS CLEARLY MANDATED THE DATE OF SERVICE AS THE DATE FOR CALCUL ATING THE TIME PERIOD PRESCRIBED. IN SECTION 249; RELEVANT PROVISI ON FOR APPEALS BEFORE THE LEARNED CIT(APPEALS) THE LIMITATION FOR FILING AN APPEAL IS PRESCRIBED AS PER SECTION 249(2); REPRODUCED BEL OW:- M.A.NO. 22 /AHD/2011 3 SECTION 249 (2) :- THE APPEAL SHALL BE PRESENTED WITHIN THIRTY DAYS OF THE FOLLOWING DATE, THAT IS TO SAY, [(A) WHERE THE APPEAL IS UNDER SECTION 248, THE DAT E OF PAYMENT OF THE TAX, OR] (B) WHERE THE APPEAL RELATES TO ANY ASSESSMENT OR P ENALTY, THE DATE OF SERVICE OF THE NOTICE OF DEMAND RELATING TO THE ASS ESSMENT OR PENALTY: [PROVIDED THAT, WHERE AN APPLICATION HAS BEEN MADE UNDER SECT ION 146 FOR REOPENING AN ASSESSMENT, THE PERIOD FROM THE DA TE ON WHICH THE APPLICATION IS MADE TO THE DATE ON WHICH THE ORDER PASSED ON THE APPLICATION IS SERVED ON THE ASSESSEE SHALL BE EXCL UDED, OR] (C) IN ANY OTHER CASE, THE DATE ON WHICH INTIMATION OF THE ORDER SOUGHT TO BE APPEALED AGAINST IS SERVED. 6.2. IT IS WORTH NOTING THAT SECTION 249(2) HAS SPE CIFICALLY DIRECTED THAT FOR THE PURPOSE OF CALCULATING 30 DAYS THE DAT E TO BE TAKEN INTO ACCOUNT IS THE DATE OF SERVICE OF THE NOTICE OF DEMAND OR IN OTHER CASES DATE ON WHICH THE ORDER IS SERVED. AS AGAINST THAT, U/S.254(2), THE STATUTE HAS CHOSEN NOT TO COMPUTE T HE PERIOD OF LIMITATION FROM THE DATE WHEN AN ITAT ORDER IS SERV ED, BUT THE STATUTE HAS CHOSEN TO COMPUTE THE TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER. 6.3. EVEN FOR THE PURPOSE OF FILING AN APPEAL TO TH E APPELLATE TRIBUNAL THE PERIOD PRESCRIBED IS 60 DAYS FROM THE DATE OF COMMUNICATION OF THE ORDER AS PER SECTION 253(3); REPRODUCED BELOW:- SECTION 253(3) :- EVERY APPEAL UNDER SUB-SECTION (1) OR SUB - SECTION (2) SHALL BE FILED WITHIN SIXTY DAYS OF THE DATE ON WHICH THE ORDER SOUGHT TO BE APPEALED AGAINST IS COMMUNICATED TO TH E ASSESSEE OR TO THE COMMISSIONER, AS THE CASE MAY BE : 7. ON READING OF THESE PARALLEL SECTIONS, THEREFORE IT IS EVIDENT THAT THE STATUTE HAS EITHER MENTIONED THAT THE DATE ON W HICH THE ORDER SOUGHT TO BE APPEALED SHOULD BE THE DATE OF COMMUNICATION, OR THE DATE WHEN THE ORDER IS SERVED OR THE DATE OF SERVIC E OF THE NOTICE OF DEMAND. HOWEVER, THE STATUTE HAS NOT GIVEN ANY SUCH INDICAT ION WHILE DRAFTING THE LANGUAGE OF SECTION 254(2) OF THE I.T. ACT RATHER IT HAS PLAINLY MENTIONED, WITHOUT ANY AMBIGUITY, THAT THE APPELLATE TRIBUNAL MAY AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS B ROUGHT TO ITS M.A.NO. 22 /AHD/2011 4 NOTICE BY THE ASSESSEE. THE PURPOSE OF USAGE OF SUC H LANGUAGE APPEARS TO BE THAT VIDE SECTION 254(2A) AN APPEAL I S OTHERWISE TO BE DECIDED BY THE TRIBUNAL WITHIN A PERIOD OF FOUR YEARS BY THE END OF THE FINANCIAL YEAR IN WHICH SUCH APPEAL IS FILED U/S.253(1) OF THE I.T.ACT. THEREAFTER, ANOTHER FOUR YEARS HAS FUR THER BEEN GRANTED FOR FILING A PETITION U/S.254(2) BY THE STATUTE. IF WITHIN THE SAID LONG PERIOD OF 'EIGHT YEARS' AN APPELLANT IS NOT VIGILANT ABOUT THE FATE OF ITS APPEAL, THEN SUCH AN APPELLANT CANNOT BE TER MED AS A SERIOUS LITIGANT INTERESTED IN GETTING AN APPEAL FINALIZED WITHIN A REASONABLE PERIOD. IN THE PRESENT CASE, THE APPEAL IN RESPECT OF THE ITA NO.497/AHD/2003 WAS FILED ON 6/2/2003. LIKEWISE, TH E APPEAL IN RESPECT OF ITA NO.498/AHD/2003 WAS FILED ON 6/2/200 3. BOTH THESE APPEALS REMAINED PENDING UPTILL FEBRUARY-2007 AND THEN ON 23/02/2007 THESE APPEALS WERE DECIDED EX-PARTE BY THE IMPUGNED ORDERS BY THE RESPECTED CO-ORDINATE BENCH. MEANING THEREBY THE APPELLANT HAS NEVER ENQUIRED IN THE SAID FOUR YEARS BETWEEN 2003 TO 2007 ABOUT THE FATE OF HIS APPEALS ALTHOUGH THOSE W ERE FILED IN THE YEAR 2003. AFTER THE LAPSE OF 8 YEARS, UNDISPUTEDLY A LONG GAP, NOW THIS ASSESSEE IS SEEKING A FAVOURABLE DECISION WHIC H MAY TANTAMOUNT TO RE-WRITING THE STATUTE. 8. AN ANOTHER FEATURE OF THE STATUE IS WORTH TO MEN TION THAT VIDE SECTION 253(5) OF THE I.T.ACT THE APPELLATE TRIBUNA L HAS BEEN GIVEN POWER TO ADMIT AN APPEAL AFTER THE EXPIRY OF THE RE LEVANT PERIOD, IF SATISFIED THAT THERE IS SUFFICIENT CAUSE FOR NOT PR ESENTING IT WITHIN THAT PERIOD. RELEVANT SECTION IS REPRODUCED BELOW:- SECTION 253(5) :- THE APPELLATE TRIBUNAL MAY ADMIT AN APPEA L OR PERMIT THE FILING OF A MEMORANDUM OF CROSS-OBJECTIO NS AFTER THE EXPIRY OF THE RELEVANT PERIOD REFERRED TO IN SUB-SE CTION (3) OR SUB- SECTION (4), IF IT IS SATISFIED THAT THERE WAS SUFF ICIENT CAUSE FOR NOT PRESENT IT WITHIN THAT PERIOD. SOMEHOW, THIS TRIBUNAL IS NOT ENSHRINED WITH SUCH J UDICIAL POWER IN RESPECT OF A MISCELLANEOUS PETITION FILED U/S.25 4(2) OF THE I.T.ACT. IF WE ARE NOT GIVEN THAT POWER, THEN IT IS NOT EXPECTED FROM US TO EXERCISE SUCH POWER WHICH IS NOT PROVIDED IN THE ACT. 9. AS FAR AS THIS JUDICIAL FORUM, I.E. INCOME TAX A PPELLATE TRIBUNAL IS CONCERNED, OUR JURISDICTION IS SIMPLY TO INTERPR ET AND FOLLOW THE STATUTE. THERE IS NO SCOPE FOR US TO IMPORT ANY WOR D INTO THE STATUTE WHICH IS NOT THERE. SUCH IMPORTATION WOULD BE NOTHING BUT TO AMEND THE STATUTE. EVEN IF THERE IS A CASUS-OMISSUS, THE DEFECT M.A.NO. 22 /AHD/2011 5 CAN BE REMEDIED THROUGH A LEGISLATION BY THE HON'BL E LEGISLATURES AND NOT BY A JUDICIAL INTERPRETATION. WE THEREFORE HOLD THAT THE CONDONATION AS SOUGHT THROUGH THESE PETITIONS IS BE YOND OUR JURISDICTION, HENCE REJECTED. 3. SINCE, IN THE PRESENT CASE ALSO, THE FACTS ARE I DENTICAL, WE DO NOT FIND ANY REASON TO TAKE CONTRARY VIEW IN THE PRESEN T CASE AND HENCE, RESPECTFULLY FOLLOWING THIS TRIBUNAL DECISION, WE H OLD THAT THE PRESENT MISCELLANEOUS APPLICATION OF THE ASSESSEE IS NOT MA INTAINABLE BECAUSE THE SAME IS FILED AFTER EXPIRY OF FOUR YEARS FROM THE D ATE OF THE TRIBUNAL ORDER. 4. REGARDING THIS JUDGMENT OF HONBLE APEX COURT RE NDERED IN THE CASE OF HOUSING BOARD, HARYANA VS HOUSING BOARD CO LONY WELFARE ASSOCIATION AND OTHERS AS REPORTED IN (1995) (HON'B LE SUPREME COURT)- GJX-0776-S.C CITED BEFORE US, WE FIND THAT IT IS NO TED BY THE HONBLE APEX COURT IN PARA 13 OF THIS JUDGMENT THAT THE ASS ESSEE WAS INTIMATED BY THE STENOGRAPHER OF THE PRESIDENT OF STATE COMMISSI ON THAT THE ORDER WOULD BE DICTATED AND TYPED AFTER THE RETURN OF THE PRESIDENT AND THE COPY WOULD BE MADE AVAILABLE TO THE PARTIES ON 31.10.199 2 UNDER THE SIGNATURE OF THE PRESIDENT ALTHOUGH THE ORDER WAS SAID TO BE PRONOUNCED BY THE DISTRICT FORUM IN THE OPEN COURT ON 22.10.1992. IN FACT, THE ORDER WAS MADE AVAILABLE TO THE APPELLANT ON 2.11.1992. THE APPEAL IN THAT CASE WAS FILED BEFORE THE STATE COMMISSION ON 30.11.1992 AND 29.11.1992 WAS SUNDAY. UNDER THESE FACTS, IT WAS HELD BY THE HON BLE APEX COURT THAT THE APPEAL WAS WITHIN TIME AND LIMITATION WAS COUNT ED FORM THE DATE ON WHICH THE COPY OF THE ORDER WAS READY TO BE MADE A VAILABLE I.E. 31.10.1992. IN THE PRESENT CASE, THIS IS NOT THE C ASE OF THE ASSESSEE THAT THE ORDER OF THE TRIBUNAL WAS NOT READY ON 28.03.20 06 WHICH IS THE DATE OF THE TRIBUNAL ORDER AND HENCE, THIS JUDGMENT IS ALSO OF NO HELP TO THE ASSESSEE IN THE PRESENT CASE. M.A.NO. 22 /AHD/2011 6 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESS STANDS DISMISSED. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (D. K. TYAGI) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 2/7 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 3/7.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S.4/7 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6/7 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.6/7 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 06/7/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .