BIREN SURESH KARANI, MUMBAI V. INCOME TAX OFFICER-31(1)3, MUMBAI

MA 252/MUM/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4548 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-04-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 17-10-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BRAJENDRA KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, MUMBAI BEFORE SHRI M BALAGANESH, AM AND SHRI SANDEEP SINGH KARHAIL, JM M A No. 2 5 2 /M um/2 0 2 1 (A r is in g in IT A No . 6 2 7 3 /Mu m /2 0 1 7 f o r A .Y:2 0 1 2 – 1 3 ) B ire n S u re sh K a ra n i 1 1 0 1 , 1 1 t h Flo o r, S h re ya sh A p p a rtm e n t, S a rja n Co – o p , L a l l u b h a i S h a m a ld a s R d . A n d h e ri ra i l wa y sta tio n , A n d h e ri–W e st, Mu m b a i– 4 0 0 0 5 8 ...... (Applicant) V s. The Income Tax Officer, Ward 31(1)3, Mumbai Kautilya Bhawan, 6 th Floor, Bandra Kurla Complex, Mumbai ...... (Respondent) Assessee by : Shri Mehul Shah, AR Revenue by : Shri Brajendra Kumar, Sr. Dr Date of hearing: 29.04.2022 Date of pronouncement : 29.04.2022 O R D E R PER M BALAGANESH, AM: 01. By virtue of this Miscellaneous Application the assessee seeks to recall the order passed by this Tribunal in ITA no. 6273/Mum/2017 dated 15 th February, 2019. 02. At the outset, we find that this Miscellaneous Application was preferred by the assessee before us on 18 th October, 2021. As stated earlier, the Tribunal order was passed on 15 th February, 2019. Admittedly, the Miscellaneous Page | 2 MA No. 252/Mum/2021 Biren Suresh Karani; A.Y. 12–13 Application by the assessee was not filed within six months from the date of the receipt of the Tribunal order and hence, is time barred. When this was confronted to the learned Authorised Representative, the learned Authorised Representative stated that certain grounds were not adjudicated by this Tribunal while disposing of this appeal and he also filed a written submission dated 18 th April, 2022 that as per Rule 24 of the Income Tax Rules, the Tribunal as got inherent power to condone the delay, if there was a sufficient cause brought on record. 03. We have gone through the provisions of Rule 24 of the Appellate Tribunal Rules, 1963 and it only talks about ex– parte order passed by the Tribunal. In the instant case the Tribunal vide its order dated 15 th February, 2019 had not passed any ex–parte order. The learned Authorised Representative had argued the case during the original round of appellate proceedings before this Tribunal. This Tribunal had passed an elaborate order disposing the issue on merits. Hence, the provisions contained in Rule 24 of the Tribunal Rules, 1963 would not be applicable in the present case. 04. The learned Authorised Representative placed reliance on the decision of the co–ordinate Bench of this Tribunal in the case of UB Ostan (India) Pvt. Ltd. vs. ITO in MA no. 02/Mum/2021 for A.Y. 2012–13 dated 30 th July, 2021 in support of his contention. This Tribunal while disposing of Page | 3 MA No. 252/Mum/2021 Biren Suresh Karani; A.Y. 12–13 the said Miscellaneous Application had also placed reliance on the decision of Hon'ble Delhi High Court in the case of Golden Times Services Pvt. Ltd vs. DCIT in Writ Petition WP(c) no. 402/2020 dated 13 th January, 2020, wherein Hon'ble Delhi High court held that the approach adopted by the Tribunal in dismissing the application for recall of order cannot be countenanced particularly since Rule 24 of ITAT Rules mandate it to decide the appeal on merits and there is no limitation provided in Rule 24. Similar view was also endorsed by the Hon'ble Jurisdictional High court in PCIT vs. ITAT in Writ Petition no. 2855/2019 dated 24 th January, 2020. We find that the reliance placed on the aforesaid Miscellaneous Application of this Tribunal and the decision of Hon'ble Delhi High Court and Hon'ble Jurisdictional High court is grossly misplaced in view of the fact that the said decisions would be applicable only if the order was passed by this Tribunal ex–parte without adjudicating the issue on merits. In the instant case, the Tribunal vide its order dated 15 th February, 2019, had addressed the issue on merits in an elaborate manner and it was not an ex–parte order. If there is any error in the said order of the Tribunal, nothing prevented assessee from preferring a Miscellaneous Application before this Tribunal within the prescribed time limit of six months or in the contrary prefer an appeal before the Hon'ble High court. We find that the assessee had missed the bus by not taking permitted legal recourse in time. The case laws Page | 4 MA No. 252/Mum/2021 Biren Suresh Karani; A.Y. 12–13 relied on by the learned Authorised Representative, are factually distinguishable. 05. In the result, the Miscellaneous Application of the assessee is dismissed. Order pronounced in the open court on 29.04.2022. Sd/- Sd/- (SANDEEP SINGH KARHAIL) (M BALAGANESH) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Mumbai, Dated: 29.04.2022 Sudip Sarkar, Sr.PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. The CIT(A) 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Mumbai