Purnagiri Rice Mills, Shahjahanpur V. Income Tax Officer, Shahjahanpur

MA 23/LKW/2019

AI Insights

The case involves M/s. Purnagiri Rice Mills, which filed a Miscellaneous Application seeking recall of an earlier ITAT order dismissing their appeal due to non-prosecution. The original appeal was dismissed as it was filed beyond the statutory time limit, and the assessee did not appear for hearings. The assessee claimed they were unaware of the ITAT's decision until receiving a demand notice from the Assessing Officer. The Tribunal dismissed the M.A. on the grounds of being time-barred and noted that the assessee had been served the original order, thus failing to provide sufficient cause for the delay.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123041 (ITAT-LUCKNOW)
• Duration Of Justice: 4 year(s) 2 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-06-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 08-06-2023
• Assessment Year: 2007-2008
• Appeal Filed On: 07-04-2019
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order; Opportunity of being heard; Condonation of delay
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH ‘B’, LUCKNOW BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER M.A. No. 23/Lkw/2019 [Arising out of ITA No.251/Lkw/2017] (Assessment Year: 2007-08) M/s. Purnagiri Rice Mills, Meeran Pur Katra, Shahjahanpur- 242301 PAN: AAHFP 6663R Vs. Income Tax Officer, Range-1(5), Shahjahanpur. (Appellant) (Respondent) O R D E R PER ANADEE NATH MISSHRA, A.M.: (A) This Miscellaneous Application (‘M.A.’ for short) has been filed by the assessee seeking recall of earlier order dated 26.06.2018, whereby the assessee’s appeal in ITA No. 251/Lkw/2017 for Assessment Year (A.Y.) 2007-08 in the case of (M/s. Purnagiri Rice Mills vs. ITO) was dismissed. The assessee’s aforesaid appeal vide ITA No. 251/Lkw/2017 was filed against the impugned appellate order dated 03.11.2016 passed by the learned Commissioner of Income Tax (Appeal), Bareilly (‘CIT(A)’ for short). The aforesaid appeal filed by the assessee was barred by limitation, having been filed beyond the prescribed time limit specified under Section 253(3) of the Income Tax Appellant by Shri Saurabh Gupta, CA Respondent by Shri Amit Nigam, (DR) Date of hearing 09/06/2023 Date of pronouncement 21/06/2023 M.A. No.23/Lkw/2019 2 Act, 1961 (‘I.T. Act’ for short). It was noted by Registry on 08.04.2019, that the appeal was time barred by 63 days. The assessee’s appeal was fixed for hearing on 09.05.2018, but there was no representation from the assessee’s side at the time of hearing. The appeal was again fixed for hearing on 25.06.2018 but once again, there was no representation from the assessee’s side. Thereafter, the Coordinate Bench of ITAT, Lucknow, vide aforesaid order dated 26.06.2018, dismissed the assessee’s appeal for non prosecution of the appeal on the part of the assessee. However, in the aforesaid order dated 26.06.2018, it was specifically mentioned that the assessee was at liberty to move application u/s. 254 of the I.T. Act, in case the assessee so desired. In this background, the assessee has filed the present M.A. under Section 254 of I.T. Act. (A.1) The M.A., dated 25.02.2019 was received by the Registry, by post, on 08.04.2019. The contents of the M.A. are reproduced as under: “Application under Section 254 of the 1.T. Act in respect of ITA No.251/Lkw/2017 for A.Y 2007-08 1. The Assessee had preferred an appeal against the order of the learned Commissioner of Income Tax (Appeals), Bareilly, before the Hon'ble Tribunal which was registered ITA No. 251/LKW/2017, relevant for A.Y. 2007-08. 2. The matter was decided by Hon'ble ITAT vide its order dt. 26/06/2018. 3. That, the appeal was apparently fixed for hearing on 25/06/2018, however since the notice of hearing was not served on the assessee for the said date hence the hearing could not be attended. Also the order of the Hon'ble ITAT was also not served M.A. No.23/Lkw/2019 3 on the assessee. It was only when the assessee received a demand notice that it came to know that its appeal has been disposed. 4. An affidavit of the appellant in support of the above Contention is being enclosed herewith. PRAYER In view of the aforementioned, it is prayed that the order passed by the Hon'ble Bench on 26/06/2018 dismissing the above appeal in ITA No. 251/Lkw/2017 may kindly be recalled and the appeal be granted a hearing in the interest of justice.” (A.2) The time limit for rectification of order of ITAT has been prescribed u/s. 254(2) of the Income Tax Act, 1961 (‘I.T. Act’ for short), and is reproduced below for ready reference: “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 rectifying 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 the Assessing Officer : Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard: Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.” M.A. No.23/Lkw/2019 4 (A.3) This present M.A. under Section 254 of I.T. Act by the assessee has been received by post on 08.04.2019 and seeks the recall of order dated 26.06.2018. Thus, this M.A., seeking recall of aforesaid order dated 26.06.2018, is filed after the prescribed time limit mentioned u/s. 254(2) of the I.T. Act. At the time of hearing before us, the ld. Authorized Representative of the assessee relied on the aforesaid M.A. dated 25.02.2019, and submitted that this M.A. could not be filed within the prescribed time limit mentioned u/s. 254(2) of the I.T. Act because the order of ITAT was not served on the assessee. He further submitted that the assessee came to know about the aforesaid order dated 26.06.2018 of ITAT only when the assessee received demand notice from the Assessing Officer. However, learned Authorized Representative for the assessee admitted, in response to specific query from the Bench, that a period of more than six months had elapsed in filing of this M.A. even from the end of the month in which the assessee came to know about the aforesaid order dated 26.06.2018 of ITAT. Yet, he requested that the delay in filing of the M.A. be condoned and the aforesaid order dated 26.06.2018 be recalled. The learned Senior Departmental Representative of the Revenue opposed the assessee’s request for condonation of delay in filing of this M.A. and submitted that the M.A. filed by the assessee being barred by limitation, the aforesaid order dated 26.06.2018 should not be recalled. (B) The relevant facts are not in dispute. It is not in dispute that more than six months had elapsed in filing of this M.A., from the end of the month in which the aforesaid order dated 26.06.2018 came to M.A. No.23/Lkw/2019 5 the knowledge of the assessee. Moreover, although condonation of delay in filing of the M.A. has been sought on the ground that the assessee did not receive the aforesaid order dated 26.06.2018 of ITAT; the explanation, for the delay in filing of the M.A. is unsatisfactorily, considering that the assessee took more than six months from the end of the month in which the aforesaid order dated 26.06.2018 of ITAT came to the knowledge of the assessee. Moreover, we find that the present M.A. filed by the assessee u/s. 254 of I.T. Act is dated 25.02.2019, but has been received by post in ITAT on 08.04.2019 after substantial lapse of time since 25.02.2019. (B.1) The assessee’s contention that aforesaid order dated 20.06.2018 of ITAT was not received by the assessee, is also not borne out from the records. As per records of ITAT; the order was served on Shri Rakesh Kumar Gupta, partner of the assessee firm on 03.08.2018. This information, alongwith copy of acknowledgement, has been forwarded to ITAT by ITO-1(5), Shahjahanpur, vide letter dated 03.8.2018. Even if the period prescribed u/s. 254 of I.T. Act is reckoned from 03.08.2018; even then, period is available for order u/s.254(2) of I.T. Act only upto 28.02.2019, after which action u/s. 254(2) of I.T. Act is barred by limitation. The assessee has failed to even file this present M.A. in ITAT by 28.02.2019. Obviously, any action u/s. 254(2) of I.T. Act is barred by limitation in the present case before us. (B.2) In any case, on perusal of Section 254 of I.T. Act, already reproduced in foregoing paragraph, we find that there is no provision M.A. No.23/Lkw/2019 6 for passing rectification order beyond the time limit prescribed u/s. 254(2) of the I.T. Act. While Section 253(5) of I.T. Act specifically contains provision for admission of an appeal and for permitting the filing of memorandum of cross objections after the expiry of limitation periods referred to in Section 253(3) and Section 253(4) respectively if the delay is explained satisfactorily on the basis of sufficient cause; we find, on perusal of Section 254 of I.T. Act, we find that there is no provision for exceeding the time limit prescribed u/s. 254(2) of I.T. Act for rectification of an order passed by the ITAT. We further find from perusal of Section 254(2) of I.T. Act; that time limit for rectification of earlier order of ITAT has been curtailed from ‘four years from date of order’ to ‘six months from the end of the month in which the order was passed’, with effect from 01.06.2016. (B.2.1) In view of foregoing and having due regard to the facts and circumstances of the present case before us, we dismiss the M.A. on the ground that it is barred by limitation. (C) In the result, M.A. filed by the assessee stands dismissed. (Order pronounced in the open court on 21/06/2023) Sd/- Sd/- (SUDHANSHU SRIVASTAVA) ( ANADEE NATH MISSHRA ) Judicial Member Accountant Member Dated: 21/06/2023 Aks M.A. No.23/Lkw/2019 7 Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. The CIT(A) 5. D.R., I.T.A.T., Lucknow Asstt. Registrar