Satya Hari Samvi, Howrah V. ITO, Ward 46(4), Kolkata, Kolkata

MA 220/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4960 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 1998-1999
• Appeal Filed On: 18-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS RANU BISWAS ADL
• Keywords: Period of limitation; Condonation of delay
• Section: 254(2)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI P.M.JAGTAP, VICE-PRESIDENT AND SHRI S.S.GODARA JUDICIAL MEMBER (MISC. APPLICATION) M.A.NO.220/KOL/2019 (ARISING OUT ITA NO.606/KOL/2017) / ASSESSMENT YEAR:1998-99 SATYA HARI SAMUI DHARSA GOVERNMENT COLONY, P.O. GIP COLONY, RAMRAJATALA, HOWRAH-711104 [ PAN NO.ALAPS 2193 R ] / V/S . INCOME TAX OFFICER WARD-46(1), 3, GOVT. PLACE WET, 1 ST FLOOR, KOLKATA-700 001 (ORIGINAL APPELLANT) (ORIGINAL R ESPONDENT) (APPLICANT) .. (RESPONDENT) /BY APPELLANT SHRI SOUMITRA CHOUDHURY ADVOCATE !' / BY RESPONDENT MRS. RANU BISWAS, ADL.CIT-DR / DATE OF HEARING 06-12-2019 / DATE OF PRONOUNCEMENT 21-02-2020 / ORDER PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES MISCELLANEOUS APPLICATION FILED U/S 254(2) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT SEEKS TO R E-CALL / RECTIFY TRIBUNALS ORDER DATED 30.10.2018 DISMISSING THE MAIN APPEAL F OR NON-PROSECUTION. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. IT TRANSPIRES AT THE OUTSET THAT THE ASSESSEES INSTANT MISCELLANEOUS APPLICATION SEEKING TO RE-CALL TRIBUNALS FOREGOING ORDER SUFFERS FROM 202 DAYS DELAY STATED TO BE ATTRIBUTABLE TO VERY SERIOUS PHY SICAL AND MENTAL HEALTH ISSUE MA NO.220/KOL/2019 SATYA HARI SAMUI V. ITO WD-46(1), KOL PAGE 2 AS WELL AS FINANCIAL CONSTRAINS. THE REVENUES CASE IS THAT THE INSTANT MISCELLANEOUS APPLICATION DESERVES TO BE DECLINED S INCE THERE IS NO PROVISION FOR CONDONATION OF DELAY IN PROCEEDINGS U/S 254(2) OF THE ACT. WE FIND NO MERIT IN REVENUES INSTANT FOREGOING TECHNICAL ARGUMENT. WE WISH TO REITERATE HERE THAT THE TRIBUNALS EARLIER ORDER HAD BEEN PASSED EX PARTE THAN AFTER HEARING THE ASSESSEE. THIS IS NOT A REVENUES CASE THAT THE INSTANT MISCELLANEOUS APPLICATION IS TIME BARRED AFTER THE ASSESSEE HAVIN G COME TO KNOW ABOUT THE TRIBUNALS SAID ORDER DISMISSING THE MAIN APPEAL FO R NON-PROSECUTION. WE ALSO NOTICE THAT THIS TRIBUNALS CO-ORDINATE BENCHS DEC ISION IN MA NO.179/KOL/2018 DATED 21.12.2018 IN M/S MAA TARA AGRO INDUSTRIES LTD VS. INCOME TAX OFF ICER WARD-4, MURSHIDABAD HAS DECIDED THE REVENUES IDENTICAL STATED AS FOLLO WS:- 2. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AT THE OUTSE T, IT IS NOTICED THAT THIS MISCELLANEOUS APPLICATION SEEKING RECALL OF THE EX- PARTE ORDER OF THE TRIBUNAL DATED JULY 12, 2017 HAS BEEN FILED BY THE ASSESSEE ON 25.09.2018 AND THE SAME HAVING BEEN FILED BY THE ASSESSEE AFTER 237 DA YS FROM THE PERIOD OF 6 MONTHS FORM THE END OF THE MONTH IN WHICH THE CORRE SPONDING ORDER WAS PASSED BY THE TRIBUNAL, THERE IS A DELAY OF 237 DAY S IN FILING THE SAME IN TERMS OF SECTION 254(2) AS POINTED OUT BY THE REGISTRY. A FTER CONSIDERING THE SUBMISSIONS OF BOTH THE SIDES ON THIS ASPECT OF DEL AY, I FIND THAT THE SAME IS SQUARELY COVERED DIN FAVOUR OF THE ASSESSEE BY THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF OM PRAKASH SANGWAN VS. I TO (2018) 94 TAXMANN.COM 394 (DEL) WHEREIN IT WAS HELD THAT RULE 24 OF THE INCOME TAX APPELLATE TRIBUNALS RULES AND THE OTHER PROVISIONS OF BOTH THE INCOME TAX ACT AND THE RULES INDICATE THAT THE ITAT HAS TO DECIDE THE APPEALS OR MATERS BEFORE IT ON MERITS AND ITS FAILURE TO DO SO IMPLIE S THAT IT EXCEEDED ITS JURISDICTION AND INSTEAD OF DECIDING ON THE MERITS, REJECTED THE APPEAL MERELY FOR NON-PROSECUTION. IT WAS HELD THAT SINCE RULE 24 DOES NOT STIPULATE ANY PERIOD OF LIMITATION WITHIN WHICH THE PARTY AGGRIEV ED BY EX-PARTE ORDER CAN APPROACH THE TRIBUNAL, IT IS OPEN TO THE APPLICANT TO APPROACH THE TRIBUNAL WITH THE SUITABLE APPLICATION FOR RESTORATION OF THE APP EALS AND THE TIME PERIOD STIPULATED IN SECTION 254(2) OF THE ACT IS NOT APPL ICABLE. FOLLOWING THIS DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF OM PRAKA SH SANGWAN, I HOLD THAT THIS APPLICATION FILED BY THE ASSESSEE FOR RECALL O F THE EX-PARTE ORDER AND RESTORATION OF ITS APPEAL IS NOT BARED BY LIMITATIO N. WE THEREFORE CONDONE THE IMPUGNED DELAY OF 202 DAY S IN FILING IN INSTANT MISCELLANEOUS APPLICATION. MA NO.220/KOL/2019 SATYA HARI SAMUI V. ITO WD-46(1), KOL PAGE 3 3. COMING TO MERITS, LEARNED COUNSELS ONLY PLEA IS THAT THE ASSESSEE COULD NOT APPEAR IN THE MAIN CASE HEREIN ON 30.10.2 018 ON ACCOUNT OF THE FOREGOING ISSUES. WE THEREFORE DEEM IT APPROPRIATE THAT LARGER INTEREST JUSTICE WOULD BE MET IN THE CASE THE MAIN APPEAL ITA NO.606/KOL/2017 IS RESTORED AT ITS ORIGINAL NUMBER AND ADJUDICATED ON MERITS. WE O RDER ACCORDINGLY. THE REGISTRY IS DIRECTED TO FIX THE ABOVE MAIN APPEAL I N REGULAR COURSE WITH PRIOR INTIMATION TO BOTH THE PARTIES. 4. THIS ASSESSEES MISCELLANEOUS APPLICATION IS ALL OWED IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 21/02/2020 SD/- SD/- ()*) ( ,) ( P.M.JAGTAP ) (S.S.GO DARA) (VICE PRESIDENT) (JUDICIAL MEMBER) KOLKATA, *DKP SR.P.S -- 21 / 02 /20 20 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SATYA HARI SAMUI DHARSA GOVT. COLONY, P. O. GIP COLONY, RAMRAJATALA HOWRAH-711104 2. !' /RESPONDENT-ITO WD-46(4), 3, GOVT. PLACE (WEST), 1 ST FL. KOLKATA-700001 3. 8 9 / CONCERNED CIT 4. 9- / CIT (A) 5. !8, 8, KOLKATA / DR, ITAT, KOLKATA 6. / GUARD FILE. BY ORDER/ , /TRUE COPY/ 8,