M/s. Mott Macdonald Ltd. (U.K.), JHANSI V. JCIT, JAIPUR

MA 23/JODH/2009

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1660 (ITAT-JODHPUR)
• Duration Of Justice: 5 year(s) 1 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 07-01-2014
• Assessment Year: 1997-1998
• Appeal Filed On: 06-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: S K AGARWAL
• Keywords: Opportunity of being heard; Permanent establishment; Reasonable cause

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER MA NO.23/JU/2009 (ARISING OUT OF ITA NO. 635/JU/2009) ASSESSMENT YEAR : 1997-98 M/S. MOTT MACDONALD LTD. (U.K.), VS. JCIT, SPECIA L RANGE-II, C/O SKA & ASSOCIATES, 352, JAIPUR, RAJASTHAN SADAR BAZAR, JHANSI (U.P.) (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI S.K. AGAR WAL. DEPARTMENT BY : SHRI N.A. JOSHI - D.R. DATE OF HEARING : 07-01-2014 DATE OF PRONOUNCEMENT : 19-02-2014 O R D E R PER HARI OM MARATHA, J.M. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE/APPLICANT IN RELATION TO THE TRIBUNALS ORDER DATED 29/01/2008 P ASSED IN ITA NO. 635/JDPR/2007 PERTAINING TO ASSESSMENT YEAR 1997-98 . 2. THE APPEAL HAD BEEN FILED AGAINST THE ORDER OF L D. CIT(A) DATED 11/01/2001 ON 20/08/2007. ACCORDINGLY, APPARENTLY, THE APPEAL WAS TREATED AS BARRED BY LIMITATION BY 06 YEARS AND FOR THIS DELAY NO CONDONATION PETITION HAD 2 BEEN FILED. SHRI S. K. AGRAWAL HAD APPEARED AS AN AUTHORIZED REPRESENTATIVE FROM THE SIDE OF THE ASSESSEE/APPELLANT/APPLICANT A ND HAD STATED THAT THIS APPEAL IS, IN FACT, WITHIN LIMITED, THEREFORE, NO C ONDONATION PETITION WAS NECESSARY TO BE FILED BECAUSE THE APPEAL WAS WITHIN LIMITATION. HE STATED THAT NO CONDONATION APPLICATION HAS BEEN FILED. HE DID NOT EVEN SEEK TIME TO FILE CONDONATION APPLICATION. THEREFORE, APPEAL OF THE ASSESSEE/APPLICANT WAS DISMISSED IN LIMINE , BEING BARRED BY LIMITATION. IN RELATION TO THIS TRIBUNALS ORDER, NOW THE APPLICANT HAS FILED THIS MISC. APPLI CATION SEEKING RECALL OF THE TRIBUNALS ORDER IN QUESTION. 3 THE FOLLOWING GROUNDS HAVE BEEN RAISED:- 1. THE ORDER IN THE APPEAL RECEIVED BY THE APPELL ANT ON 14/02/2008. 2. THE ABOVE APPEAL WAS FIXED FOR HEARING ON231011 2008. THE APPEAL FOR THE A.Y. 1997-98 WAS DECIDED BY THE HON'BLE CIT (APPEALS), JAIPUR ON 11/01/2001. DURING THAT PERIOD THE CAMP OFFICE O F THE ASSESSEE WAS CLOSED AS THE PROJECT THE WAS COMPLETED AND WHE N THE APPEAL CAME UP FOR HEARING, NO BODY WAS THERE TO PURSUE TH E MATTER AS A RESULT, IT WAS DECIDED EXPARTE. THE ORDER OF THE CI T (APPEALS) WAS DELIVERED TO THE COUNSEL OF THE ASSESSEE WHO WAS LO OKING AFTER THE CASES FOR PREVIOUS YEARS. THE COUNSEL NEITHER INFOR MED NOR SUPPLIED THE COPY OF THE ORDER TO THE ASSESSEE. WHEN THE AUT HORISED REPRESENTATIVE OF THE ASSESSEE ENQUIRED FROM THE OF FICE OF CIT (APPEALS), THIS FACT CAME TO HIS NOTICE THEN HE REQ UESTED FOR THE COPY OF ORDER WHICH WAS GIVEN TO HIM ON 11/07/2007. THE APPELLANT THEN FILED THE APPEAL IN THE MONTH O F AUG. 2007 IE. WELL WITHIN 60 DAYS FROM THE DATE OF RECEIVING THE ORDER UNDER THE HONEST BELIEF THAT THERE IS NO REQUIREMENT OF FILING ANY A PPLICATION FOR CONDONATION PETITION BECAUSE THE APPEAL WAS FILED W ITHIN THE PERIOD AS STIPULATED UNDER THE ACT. THE PHOTOCOPY OF THE L ETTER WHICH WAS 3 GIVEN BY THE ASSESSEE IN THE OFFICE OF CIT (APPEALS )- III, JAIPUR IS ATTACHED AS ANNEXURE I. 3. THE APPEAL CAME UP FOR HEARING ON 23/01/2008 BE FORE THE HON.BLE TRIBUNAL. THE TRIBUNAL DISMISSED IT WITH THE FOLLOW ING OBSERVATIONS: THIS APPEAL OF THE ASSESSEE FOR A.Y. 1997-98, HAV ING BEEN FILED AGAINST THE ORDER OF THE LD. CIT (A) DATED 11 /01/2001, IS BARRED BY LIMITATION BEING DELAYED BY SIX YEARS, IT WAS NOTICED THAT NO PROPER CONDONATION PETITION HAS BEEN FILED. MOREOVER THE DELAY IS INORDINATE AND NOT SATISFACTORILY EXPL AINED, THEREFORE, WE DECLINE TO CONDONE THIS DELAY, CONSEQ UENTLY, WE DISMISS THIS APPEAL BEING BARRED BY LIMITATION, AT THE VERY THRESHOLD'' 4. IT IS RESPECTFULLY REQUESTED THAT THE CONTENTS MENTIONED IN PARA 2 OF THIS APPLICATION MAY PLEASE BE VERIFIED FROM THE OF FICE OF CIT (A) - III , JAIPUR AND RECALL THE ABOVE ORDER AND DECIDE IT AFR ESH AFTER ALLOWING AN OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 4. ON THE DATE OF HEARING, APART FROM MAKING ORAL S UBMISSIONS, WRITTEN SUBMISSION WAS ALSO FILED. THE WRITTEN SUBMISSION FILED IS BEING EXTRACTED, VERBATIM AS UNDER:- 'THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION W AS COMPLETED ON 10/01/2001 BY HON'BLE CIT (APPEALS) - III- JAIPUR, THE COPY OF THE SAME WAS RECD. TO THE ASSESSEE ON 11/07/2007. THE ASSESSEE T HEN FILED APPEAL BEFORE THE HON'BLE BENCH OF ITAT, JODHPUR WHICH WAS DISMIS SED BY THE HON'BLE BENCH VIDE ORDER DATED 29/01/2008 BEING BARED BY LI MITATION. THE ASSESSEE AGAIN FILED A MISC. APPLICATION WITH THE REQUEST TH AT THE COPY OF ORDER WAS NOT RECD. TO THE ASSESSEE AND THE ORDER WAS SERVED ON A PERSON WHO IS NEITHER PRINCIPAL OFFICER OF THE COMPANY NOR HAVING A VALID POWER OF ATTORNEY FROM THE COMPANY TO RECEIVE THE COPY OF OR DER. THE ASSESSEE ALSO REQUESTED THAT THE FACT SHOULD BE VERIFIED FROM THE OFFICE OF CIT (A)-III, JAIPUR. THE ASSESSEE HAD RECD. A LETTER FROM CIT (D R), ITAT, JODHPUR DATED 30/04/2010 ALONG WITH PHOTOCOPY OF DISPATCH REGISTE R SHOWING THE DATE OF RECEIVING OF ORDER AS 25-01-2001 AND THE COPY OF AC KNOWLEDGEMENT SLIP SHOWING THE RECEIPT OF THE ORDER WAS ALSO ATTACHED WHICH SHOWS THAT THE ORDER WAS DELIVERED TO ONE MR. AGARWAL ON 25-01-200 1. THE COPY OF DISPATCH REGISTER & ACKNOWLEDGEMENT SLIP IS ATTACHE D AS ANNEXURE I & II FOR 4 YOUR READY REFERENCE. THE ACKNOWLEDGEMENT SLIP CLEA RLY SHOWS THAT THE COPY OF THE ORDER WAS NOT DELIVERED TO THE PROPER P ERSON AS SPECIFIED U/S 282 OF THE INCOME TAX ACT, 1961 AS A RESULT THE DEL AY IN FILING OF APPEAL TOOK PLACE BECAUSE THE CAMP OFFICE OF THE COMPANY WAS CL OSED IN THE YEAR 2000. YOUR HONOR, HERE I WOULD LIKE TO INVITE YOUR KIND A TTENTION TOWARDS RATIO LAID DOWN BY HON'BLEBLE SUPREME COURT IN THE CASE OF COL LECTOR, LAND ACQUISITION VS. MST. KATIJI REPORTED IN 167 ITR 471 THAT, ' THE LEGISLATURE HAS CONFERRED POWER TO CONDONE DELAY BY ENACTING SEC.5 OF THE LIMITATION ACT OF 1963 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIA L JUSTICE TO PARTIES BY DISPOSING OF THE MATTER ON MERITS'. AGAIN THE APEX COURT IN THE CASE OF SHAKUNTLA DEVI JAIN VS. KUNTAL KUMARI REPORTED IN A IR 1969 SC 575 HELD, THAT DELAY IN OBTAINING THE CERTIFIED COPY OF ORDER WAS TREATED AS SUFFICIENT CAUSE TO CONDONE THE DELAY IN FILING APPEAL. IN O.P.KATHP ALIA VS. LAKHMIR SINGH REPORTED IN AIR 1984 SC 1744, IT WAS HELD BY THE HO N'BLE APEX COURT THAT, IF THE REFUSAL TO CONDONE THE DELAY RESULTS IN GRAVE M ISCARRIAGE OF JUSTICE, IT WOULD BE A GROUND TO CONDONE THE DELAY. RECENTLY, IN THE CASE OF STATE OF NAGALAND VS. LIPOK AO & OTHERS REPORTED IN AIR 2005 SC 2191 THAT, THE COURT SHOULD NOT ADOPT AN INJUSTICE ORIENTED APPROACH IN REJECTING THE APPLICATION FOR CONDONATION OF DELAY. IN THE PRESENT CASE THE DELAY IN FILLING OF APPEAL TOOK PLACE BECAUSE THE COPY OF ORDER WAS NOT SERVED PROPERLY TO THE ASSESSEE AND AS SOON AS ASSESSEE CAME TO KNOW ABOUT THIS FACT, THE ASSESSEE GAVE NECESSARY INSTRUCTIONS TO HIS STAFF W HO WAS WORKING WITH THEM TO COLLECT THE COPY OF ORDER BUT SINCE THE COM PANY WAS NOT HAVING ANY PERMANENT ESTABLISHMENT IN THIS COUNTRY HENCE NONE OF THE PRINCIPAL OFFICER VISITED DURING THAT PERIOD AS A RESULT THE DELAY IN COLLECTING THE CERTIFIED COPY OF ORDER TOOK PLACE CONSEQUENTLY THE ASSESSEE WAS NOT ABLE TO FILE APPEAL IN TIME. IN THESE CIRCUMSTANCES, IT IS REQUESTED THAT THE, D ELAY IN FILING OF APPEAL MAY PLEASE BE CONDONED AND AN OPPORTUNITY MAY PLEASE BE GIVEN TO THE ASSESSEE TO ARGUE ITS CASE BEFORE THE HON'BLE BENCH . 5. PER CONTRA , LD. D.R. HAS OBJECTED TO GRANT ANY RELIEF TO THE APPLICANT IN VIEW OF THE FACT THAT THERE IS NO MISTAKE IN THE TR IBUNALS ORDER. 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE CONSIDERED OPINION THAT THERE SEEMS TO BE A REASONABLE CAUSE IN NOT FI LING CONDONATION APPLICATION 5 AS THE APPELLANT WAS OF THE VIEW THAT THERE IS NO D ELAY IN VIEW OF THE ABOVE STATED REASONS. THE LEGAL POSITION AS EXPRESSED BY HON'BLE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI REPORTED IN 167 ITR 471; SHAKUNTAL DEVI JAIN VS. KUNTAL KUMARI REPORTED IN AIR 1969 SC 575 AND O.P. KATHAPLIA VS. LAKHMIR SINGH REPORTED IN AIR 1984 SC 1744, WE ARE ALLOWING THIS APPEAL. THE GIST OF THE ABOVE DECISIONS, INTER-ALI A, IS THAT WHEN THE SUBSTANTIAL JUSTICE IS PITTED AGAINST PEDANTIC REASONS, THE FOR MER SHOULD PREVAIL. THAT THE CAUSE OF SUBSTANTIATE JUSTICE SHOULD NOT BE BLOCKED ITS VERY THRESHOLD. WE HAVE FOUND THAT IN THIS CASE IT WAS NOT A MALAFIDE INTENTION OR CONSCIOUS EFFORT NOT TO FILE THE APPEAL IN TIME. THE REASONS GIVEN IN THIS APPLICATION CLEARLY SPELL OUT THAT DUE TO CLOSURE OF IT OFFICE IN INDIA, THE APPE LLANT-COMPANY COULD NOT BE SERVED PROPERLY IN TERMS OF SECTION 282 OF THE ACT, WITH A COPY OF ORDER PASSED BY THE LD. CIT(A) AGAINST WHICH THE APPEAL IN QUEST ION WAS FILED. EVEN THE LD. CIT(A), JAIPUR, HAD PASSED AN EXPARTE ORDER ON 11/01/2011. 7. IN THE TOTALITY OF THE ABOVE NOTED FACTS AND CUM ULATIVE OF THE ABOVE CIRCUMSTANCES, BY RESPECTFULLY FOLLOWING THE DICTUM OF THE HON'BLE APEX COURT, AS DISCUSSED ABOVE, WE ALLOW THIS MISC. APPLICATION AND RECALL THE TRIBUNALS ORDER DATED 29/01/2008 PASSED IN THE CASE OF M/S. M OTT MAC DONALD LTD. VS. JCIT IN I.T.A.NO. 635/JDPR/2007 FOR THE A.Y. 1997-9 8. WE DIRECT THE REGISTRY TO REVIVE THE APPEAL AT ITS ORIGINAL NUMBER. 6 8. IN THE RESULT, THIS MISC. APPLICATION IS ALLOWED . THE REGISTRY IS DIRECTED TO RE-FIX THE MAIN APPEAL IN DUE COURSE. (ORDER PRONOUNCED IN THE OPEN COURT ON THIS 19-02- 2014.) SD/- SD/- (N.K. SAINI) (HARI OM MARATHA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 19 TH FEBRUARY, 2014 VR/- COPY TO:- 1.THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE LD. CIT(A) 5. THE DR 6. THE GUARD FILE ASSISTANT REGISTRAR ITAT, JODHPUR