Sri Prasanta Ghosh, Paschim Medinipur V. Addl. CIT, Range - 2, Midnapore

MA 3/KOL/2019

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3855 (ITAT-KOLKATA)
• Duration Of Justice: 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 03-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHANKAR HALDER
• Assessee Lawyers: S M SURANA
• Keywords: Period of limitation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A, KOLKATA BEFORE SH. P.M.JAGTAP, VICE PRESIDENT & SH.S.S.VISWANETHRA RAVI, JUDICIAL MEMBER M.A.NO.-03/KOL/2019 [IN ITA NO.814/KOL/2015] (ASSESSMENT YEAR-2007-08) ORDER PER S.S. VISWANETHRA RAVI, JUDICIAL MEMBER BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE INTENDS TO RECALL THE EX-PARTE ORDER DATED 05.10.2017 PASSED BY THIS TRIBUNAL. 2. IT WAS SUBMITTED BY THE LD.AR THAT THE REGISTRY, ITAT, KOLKATA BENCHES RAISED AN OBJECTION REGARDING NON-FILING OF PETITION TO CONDONE THE ALLEGED DELAY OF 248 DAYS. HE SUBMITTED THAT THE PROVISION U/S 254(2) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) IS NOT APPLICABLE AND THERE WAS NO PERIOD OF LIMITATION PRESCRIBED UNDER RULE 24 OF INCOME TAX RULES 1962. THE LD. AR CONTENDED THAT UNDER RULE 24, EVEN IN THE ABSENCE OF PARTIES THE TRIBUNAL HAVE TO DECIDE APPEALS ON MERITS, THE HONBLE HIGH COURT OF DELHI IN THE CASE OF OM PRAKASH SANGWAN VS ITO [2018] 94 TAXMANN.COM 394 (DELHI) HELD THAT THE TRIBUNAL EXCEEDED ITS JURISDICTION IN DISMISSING THE APPEAL FOR NON-PROSECUTION INSTEAD OF DECIDING THE APPEAL ON MERITS. HE PLACED ON RECORD AND RELIANCE ON THE ORDER OF THIS TRIBUNAL IN THE CASE OF M/S. TARA AGRO INDUSTRIES AND DREW OUR ATTENTION TO PARA 2 OF THE SAID ORDER IN SUPPORT OF HIS CONTENTION. WE FIND THAT THIS TRIBUNAL WHILE HOLDING THE PROVISION U/S 254(2) IS NOT APPLICABLE THAT THE APPLICATION FILED BY THE SRI PRASANTA GHOSH, VILL. & P.O.-GOPSAI, C.K.TOWN, DIST.-PASCHIM MIDNAPUR-721101. PAN-AFEPG8624D VS ACIT, RANGE-2, MIDNAPUR. (APPELLANT) (RESPONDENT) APPELLANT BY SH. S.M.SURANA, ADV. RESPONDENT BY SH.SHANKAR KUMAR HALDER, JCIT SR DR DATE OF HEARING 25.01.2019 DATE OF PRONOUNCEMENT 01.02.2019 M.A.NO.-03/KOL/2019 [IN ITA NO.814/KOL/2015] (ASSESSMENT YEAR-2007-08) PAGE | 2 ASSESSEE FOR RECALL OF EX-PARTE ORDER IS NOT BARRED BY LIMITATION BY PLACING RELIANCE IN THE CASE OF OM PRAKASH SANGWAN [SUPRA]. THEREFORE, TAKING INTO CONSIDERATION THE SAME, WE HOLD THAT THE OBJECTIONS RAISED BY THE REGISTRY ARE OVER-RULED. 3. IT IS NOTED FROM THE RECORD THAT THE ASSESSEE CONTENDED IN ITS M.A. THAT NO NOTICE FOR FIXATION OF HEARING WAS SERVED AND DUE TO WHICH THE ASSESSEE COULD NOT REPRESENT THE CASE BEFORE THIS TRIBUNAL. THE LD.AR ALSO UNDERTAKES IF THIS TRIBUNAL PLEASES TO RECALL THE EX-PARTE ORDER THAT THE ASSESSEE WILL PROSECUTE HIS APPEAL WITHOUT FAIL. WE FIND THE REASONS STATED BY THE ASSESSEE IN THIS M.A ARE BONAFIDE WHICH REALLY PREVENTED THE ASSESSEE IN APPEARING BEFORE THE TRIBUNAL ON THE DATE OF HEARING. THEREFORE, WE RECALL THE EX-PARTE ORDER DATED 05.10.2017 AND RESTORE THE APPEAL TO THE FILE. THE REGISTRY IS DIRECTED TO FIX THE APPEAL IN DUE COURSE OF TIME BEFORE THE BENCH HAVING JURISDICTION AND ACCORDINGLY, INTIMATE THE SAME TO BOTH THE PARTIES. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01.02.2019. SD/- SD/- (P.M.JAGTAP) (S.S.VISWANETHRA RAVI) VICE PRESIDENT JUDICIAL MEMBER [ DATE:- 01.02.2019 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT- SRI PRASANTA GHOSH, VILL. & P.O.-GOPSAI, C.K.TOWN, DIST.- PASCHIM MIDNAPUR-721101. 2. RESPONDENT- ACIT, RANGE-2, MIDNAPUR. 3. CIT-KOLKAT A 4. CIT(APPEALS)-KOLKATA 5. DR: ITAT -KOLKATA BENCHES BY ORDER AR/H.O.O ITAT, KOLKATA