Shri Jitendra Nanki Gala, Baroda V. The ACIT.,Circle-2(1), Baroda

MA 245/AHD/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2721 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 11-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BIREN SHAH
• Keywords: Period of limitation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT & MS. MADHUMITA ROY, JUDICIAL MEMBER M.A. NO.245/AHD/2018 (IN ITA NO. 986/AHD/2013) (ASSESSMENT YEAR : 2008-09) JITENDRA NANJI GALA, S-1, HEENA APARTMENTS, 9, LAXMI COLONY, NEAR URMI CROSS ROADS, ALKAPURI, BARODA. VS. ACIT, CIRCLE 2(1), BARODA. [PAN NO. ACXPG 1550 G] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI BIREN SHAH, A.R. RESPONDENT BY : SHRI MUDIT NAGPAL , SR. D.R. DATE OF HEARING 21/12/2018 DATE OF PRONOUNCEMENT 25/02/2019 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT MISCELLANEOUS APPLICATION UNDER SECTION 254(2) OF THE INCOME TAX ACT (HEREINAFTER REFERRED AS TO THE ACT) IS DIREC TED AT THE INSTANCE OF THE ASSESSEE SEEKING RECALL OF TRIBUNALS ORDER DATED 15.03.2016 IN ITA NO.986/AHD/2013 (ASSESSEES APPEAL) FOR ASSESSMENT YEAR 2008-09 WHEREBY AND WHE REUNDER THE MATTER WAS DISMISSED FOR NON PROSECUTION APPLYING THE RATIO OF THE DECISION OF THE MULTIPLAN INDIAN PVT. LTD. 38 ITD 320. 2. ADMITTEDLY THE INSTANT APPLICATION HAS BEEN FILE D ON 11.09.2018 I.E. MUCH AFTER THE EXPIRY OF SIX MONTHS, THE PERIOD OF LIMITATION PRES CRIBED UNDER THE AMENDMENT MADE IN SECTION 254(2) BY THE FINANCIAL ACT, 2016 W.E.F 01. 06.2016, SUCH AMENDMENT CURTAILED TO - 2 - MA N O.245/AHD/2018(IN ITA NO.986/A/13) JITENDRA NANJI GALA VS. ACIT ASST.YEAR 2008-09 6 MONTHS FROM THE DATE OF PASSING OF THE ORDER FROM A PERIOD OF 4 YEARS FROM THE DATE OF ORDER. IN THAT VIEW OF THE MATTER THE LEARNED DR RA ISED HIS OBJECTION AS TO THE MAINTAINABILITY OF THE APPLICATION ON THE GROUND OF LIMITATION. THE LEARNED AR IN THIS RESPECT SUBMITTED THAT THE ISSUE HAS ALREADY BEEN S ETTLED BY THE HONBLE M. P. HIGH COURT IN WRIT PETITION NO.4144/2017 IN THE CASE OF DISTRI CT CENTRAL CO-OP. BANK LTD.-VS-UNION OF INDIA AND THE JUDGMENT PASSED BY THE APEX COURT IN THE CASE OF M. P. STEEL CORPORATION-VS-COMMISSIONER OF CENTRAL EXCISE WHERE THE DELAY HAS BEEN CONDONED SINCE IT AFFECTS THE VESTED RIGHTS OF THE ASSESSEE. 3. HEARD THE RESPECTIVE PARTIES, PERUSED THE RELEVA NT MATERIALS AVAILABLE ON RECORD. WE HAVE CAREFULLY CONSIDERED THE ORDER PASSED BY TH E HONBLE M.P. HIGH COURT WHEREIN THE JUDGMENT PASSED IN THE MATTER OF M.P. STEEL COR PORATION PASSED BY THE HONBLE APEX COURT HAS BEEN TAKEN INTO CONSIDERATION WHEREIN IT WAS HELD THAT THOUGH THE PERIOD OF LIMITATION, BEING PROCEDURAL LAW, ARE TO BE APPLIED RETROSPECTIVELY, YET IF A SHORTER PERIOD OF LIMITATION IS PROVIDED BY A LATER AMENDMENT TO A STATUTE, SUCH PERIOD WOULD RENDER THE VESTED RIGHT OF ACTION CONTAINED IN THE STATUTE NUG ATORY AS SUCH RIGHT OF ACTION WOULD NOW BECOME TIME BARRED UNDER THE AMENDED PROVISION. THE REFORE, A STATUTE WHICH WHILE PROCEDURAL IN ITS CHARACTER, IF IT AFFECTS VESTED R IGHTS ADVERSELY IT HAS TO BE CONSTRUED AS PROSPECTIVE. TAKING INTO CONSIDERATION, THIS PARTICULAR ASPECT O F THE MATTER AS SETTLED BY THE HONBLE APEX COURT IN THE MATTER OF M.P. STEEL CORP ORATION (SUPRA) WE FIND THAT THE LAW OF LIMITATION PROVIDING A SHORTER PERIOD CANNOT CER TAINLY EXTINGUISH A VESTED RIGHT OF ACTION. 4. IT APPEARS FROM THE AVERMENTS MADE IN THE APPLIC ATION THAT THE ASSESSEE HAS NOT RECEIVED THE EX-PARTE ORDER PASSED ON 15.03.2016. O NLY UPON ENQUIRY WITH THE CA THE SAME WAS HANDED OVER TO THE ASSESSEE UPON OBTAINING THE SAME FROM THE OFFICIAL SERVER - 3 - MA N O.245/AHD/2018(IN ITA NO.986/A/13) JITENDRA NANJI GALA VS. ACIT ASST.YEAR 2008-09 AND HENCE THE MA HAS BEEN FILED AFTER THE EXPIRY OF SIX MONTHS AS STIPULATED BY THE AMENDED. THE REASON SO FURNISHED BY THE ASSESSEE FOR SUCH DE LAY IN PREFERRING THE MISC. APPLICATION SEEMS TO BE GENUINE AND HENCE THE DELAY IS CONDONED. 5. IT APPEARS FROM THE MISC. APPLICATION THAT THE A SSESSEE WAS OUT OF STATION ON ACCOUNT OF SOCIAL OCCASION WHEN HIS RESIDENCE WAS L OCKED AND NONE COULD RECEIVE THE NOTICE OF HEARING ISSUED ON 09.02.2016 AS A RESULT WHEREOF THE ASSESSEE COULD NOT REMAIN PRESENT ON THE DATE OF HEARING. WE FIND SUBSTANCE I N SUCH EXPLANATION RENDERED BY THE ASSESSEE. SINCE WE DO NOT FIND ANY INTENTIONAL LACH ES ON THE PART OF THE ASSESSEE, FOR THE ENDS OF JUSTICE WE ALLOW THE INSTANT APPLICATION. 6. THE TRIBUNALS ORDER DATED 15.03.2016 IS THUS RE CALLED. THE REGISTRY IS DIRECTED TO KEEP THE MATER ON BOARD ON 06.03.2019. SINCE THE LE ARNED ADVOCATE IS PRESENT BEFORE US AT THE TIME OF HEARING OF THIS MISC. APPLICATION, S ERVICE OF NOTICE UPON THE ASSESSEE IS DISPENSED WITH. 7. IN THE RESULT, MISC. APPLICATION IS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 25/02/2019 SD/- SD/- ( PRAMOD KUMAR ) ( MS. MADHUMITA ROY ) VICE PRESIDENT JUDICIAL MEMBER AHMEDABAD; DATED 25/02/2019 PRITI YADAV, SR.PS - 4 - MA N O.245/AHD/2018(IN ITA NO.986/A/13) JITENDRA NANJI GALA VS. ACIT ASST.YEAR 2008-09 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A). 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 25.02.2019 (DICTATION PAGES 11) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25.02.2019. 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 25.02.2019 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER