M/s. Karuturi Global Limited, Bangalore V. Deputy Commissioner of Income Tax, Circle-4(1)(1), Bangalore

MA 325/BANG/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6134 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 08-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIKAS K SURYAWANSHI
• Keywords: Period of limitation; Question of law; Reasonable cause; Time period of passing order
• Section: 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER A ND SHRI LALIET KUMAR, JUDICIAL MEMBER M.P. NO. 325/BANG/2018 (IN IT (TP) A NO. 1 0 4 / BANG/201 6 ) ASSESSMENT YEAR : 20 1 1 - 12 M/S. KARUTURI GLOBAL LTD., NO. 204, EMBASSY CENTRE, 11, CRESCENT ROAD, BANGALORE 560 001. PAN: AAACK8275A VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 4 (1) (1), BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI SURESH MUTHU KRISHNAN, CA REVENUE BY : SHRI VIKAS K. SURYAWANSHI, ADDL. CIT (DR) DATE OF HEARING : 1 1 . 01 .201 9 DATE OF PRONOUNCEMENT : 25 . 01 .201 9 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER; THIS M.P. IS FILED BY THE ASSESSEE REQUESTING FOR R ECALL OF THE EX-PARTE TRIBUNAL ORDER DATED 22.11.2016. THIS M.P. IS FILED BY THE ASSESSEE ON 08.10.2018. THE DEFECT MEMO WAS ALSO ISSUED BY THE REGISTRY TO THE ASSESSEE POINTING OUT THAT THERE IS A DELAY OF 497 DAYS IN FILING OF M.P. 2. IN COURSE OF HEARING OF THIS M.P., THIS WAS POIN TED OUT BY THE BENCH THAT THIS M.P. FILED BY ASSESSEE IS TIME BARRED AND THEREFORE , THIS IS NOT ADMISSIBLE AS PER PROVISIONS OF SECTION 254(2) OF IT ACT. IN REP LY, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT ASSESSEES REQUEST IS NOT FOR A NY RECTIFICATION IN THE IMPUGNED TRIBUNAL ORDER BUT TO RECALL THE IMPUGNED TRIBUNAL ORDER UNDER RULE 24 OF INCOME TAX APPELLATE TRIBUNAL RULES, 196 3. HE PLACED RELIANCE ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS IN SUPPORT OF THIS CONTENTION THAT FOR RECALL UNDER RULE 24 OF INCOME TAX APPELLATE TR IBUNAL RULES, 1963, M.P. NO. 325/BANG/2018 (IN IT(TP)A NO. 104/BANG/2016) PAGE 2 OF 9 THERE IS NO LIMITATION PROVIDED IN THE SAID RULE. HE CITED THE FOLLOWING JUDGEMENTS. A) S.P. BALASUBRAHMANYAM VS. ACIT, 394 ITR 366 (MAD ), PAGES 12 TO 20 OF PAPER BOOK B) CIT VS. SHRI P. VENKATESAN &ORS. DATED 21.06.201 6 IN TAX CASE (APPEAL) NOS. 952 TO 954 OF 2013 (MAD), PAPER BOOK PAGES 21 TO 23 C) SRI MUNINAGA REDDY VS. ACIT IN W.P. NO. 25553/20 18 (T-IT) DATED 12.07.2018 (KARNATAKA), PAPER BOOK PAGES 1 TO 11 D) N.S. MOHAN VS. ITO IN W.P. NO. 8126 OF 2018 DATE D 16.04.2018 (MAD), PAGES 24 TO 27 OF PAPER BOOK. 3. REGARDING THE FIRST JUDGMENT OF HONBLE MADRAS H IGH COURT CITED BEFORE US RENDERED IN THE CASE OF S.P. BALASUBRAHMANYAM VS. A CIT (SUPRA), IT WAS SUBMITTED THAT PAGE NOS. 15 AND 16 OF THIS PAPER BO OK BEING PAGE NOS. 373 AND 374 OF ITR 394 ARE RELEVANT. REGARDING THE SEC OND JUDGEMENT CITED BEFORE US OF HONBLE MADRAS HIGH COURT RENDERED IN THE CASE OF CIT VS. SHRI P. VENKATESAN &ORS. (SUPRA), IT WAS SUBMITTED THAT PARA 6 OF THIS JUDGEMENT ON PAGE NO. 22 OF PAPER BOOK IS RELEVANT. IN RESPECT OF THE THIRD JUDGEMENT OF HON'BLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF SRI MUNINAGA REDDY VS. ACIT (SUPRA), OUR ATTENTION WAS DRAWN TO PARAS 7 TO 10 OF THIS JUDGEMENT. IN RESPECT OF FOURTH JUDGEMENT ON WHICH RELIANCE HAS BEEN PLACED BY LD. AR OF ASSESSEE HAVING BEEN RENDE RED IN THE CASE OF N.S. MOHAN VS. ITO (SUPRA), IT WAS SUBMITTED THAT P ARA 3 OF THIS JUDGEMENT ON PAGE NO. 25 OF THE PAPER BOOK IS RELEVANT. 4. AS AGAINST THIS THE LD. DR OF REVENUE SUBMITTED THAT M.P. IS TIME BARRED AND HENCE, NOT ADMISSIBLE. REGARDING FOUR JUDGEMENTS C ITED BY LD. AR OF ASSESSEE, HE SUBMITTED THAT THESE JUDGEMENTS ARE NO T APPLICABLE IN THE FACTS OF PRESENT CASE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE F ACTS ARE NOT DISPUTED THAT THE IMPUGNED TRIBUNAL ORDER IS DATED 22.11.2016 AND THE PRESENT M.P. HAD BEEN FILED BY ASSESSEE ON 08.10.2018 AND AS PER THE PROVISIONS OF SECTION 254(2) AFTER AMENDMENT, THE M.P. CAN BE FIL ED BY THE ASSESSEE WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHIC H THE TRIBUNAL ORDER HAS M.P. NO. 325/BANG/2018 (IN IT(TP)A NO. 104/BANG/2016) PAGE 3 OF 9 BEEN PASSED. THEREFORE, THE PRESENT M.P. COULD HAV E BEEN FILED BY THE ASSESSEE UP TO 31.05.2017 AND THEREFORE, THE PRESEN T M.P. OF ASSESSEE IS TIME BARRED. IN LIGHT OF THESE FACTS, NOW WE EXAMI NE THE APPLICABILITY OF VARIOUS JUDGEMENTS CITED BY LD. AR OF ASSESSEE. TH E FIRST JUDGMENT CITED BY HIM IS THE JUDGMENT OF HONBLE MADRAS HIGH COURT RE NDERED IN THE CASE OF S.P. BALASUBRAHMANYAM VS. ACIT (SUPRA). IN THIS CA SE, THE TRIBUNAL ORDER WAS DATED 18.07.2011 AND THE M.P. WAS FILED BY THE ASSESSEE ON 24.07.2015. HENCE THERE WAS A DELAY OF JUST 6 DAYS AS NOTED BY HONBLE MADRAS HIGH COURT IN PARA NO. 21 OF THIS JUDGMENT. ALTHOUGH HONBLE MADRAS HIGH COURT HAS REPRODUCED THE CONTENTS OF RU LE 24 AND 25 OF INCOME TAX APPELLATE TRIBUNAL RULES, 1963 BUT AS PE R PARA NO. 25 OF THIS JUDGEMENT AS AVAILABLE ON PAGE NO. 20 OF THE PAPER BOOK I.E. PAGE NO. 383 OF ITR 394, THE ISSUE WAS DECIDED AGAINST THE ASSES SEE AND FOR THE SAKE OF READY REFERENCE, WE REPRODUCE THIS PARA 25 OF THIS JUDGEMENT WHICH IS AS UNDER. 25. IN THE LIGHT OF THE DISCUSSIONS AND DECISIONS, WE FIND NO MERIT IN THE APPEAL AND CONSEQUENTLY, THE SUBSTANTIAL QUE STION OF LAW RAISED, IS ANSWERED AGAINST THE ASSESSEE. ACCORDING LY, THE INSTANT TAX CASE APPEAL IS DISMISSED. HOWEVER, THERE SHALL BE NO ORDER AS TO COST. 6. HENCE, THIS JUDGMENT OF HONBLE MADRAS HIGH COUR T IS NOT RENDERING ANY HELP TO ASSESSEE IN THE PRESENT CASE. 7. NOW WE EXAMINE THE APPLICABILITY OF SECOND JUDGE MENT CITED BY LD. AR OF ASSESSEE RENDERED IN THE CASE OF CIT VS. SHRI P. VE NKATESAN & ORS. (SUPRA). AS PER THE FACTS NOTED IN THIS CASE, THE TRIBUNAL ORDER WAS DATED 27.11.2012 AND AS PER THE M.P. ORDER OF THE TRIBUNA L DATED 03.05.2013, THE TRIBUNAL RECALLED ITS EARLIER ORDER DATED 27.11.201 2. WHAT IS THE DATE OF FILING OF M.P. IS NOT COMING OUT FROM THIS JUDGEMENT. AGA INST THIS ORDER OF THE TRIBUNAL IN M.P., REVENUE FILED AN APPEAL BEFORE HO NBLE MADRAS HIGH COURT IN WHICH IT WAS CONTENDED THAT THE TRIBUNAL OUGHT N OT TO HAVE RECALLED THE TRIBUNAL ORDER BECAUSE IN THE SAME TRIBUNAL ORDER, THE ISSUE WAS DECIDED ON MERIT. THE FOLLOWING TWO QUESTIONS OF LAW WERE RAISED BEFORE HONBLE M.P. NO. 325/BANG/2018 (IN IT(TP)A NO. 104/BANG/2016) PAGE 4 OF 9 MADRAS HIGH COURT WHICH ARE REPRODUCED HEREINBELOW FROM PAGE NO. 21 OF THE PAPER BOOK. 1. WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS RIGHT IN RECALLING ITS ORIGINAL ORDER WHICH WAS PAS SED BY IT AFTER CONSIDERING THE ISSUE ON MERITS? 2. WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE, IS ORDER OF THE INCOME TAX APPELLATE TRIBUNAL, RECALLING ITS EARLIE R ORDER NOT AMOUNT TO REVIEW OF ITS ORIGINAL ORDER? 8. FROM THE ABOVE TWO QUESTIONS OF LAW RAISED BEFOR E HONBLE MADRAS HIGH COURT, IT IS SEEN THAT IN THIS CASE, THIS IS NOT TH E ISSUE IN DISPUTE AS TO WHETHER THE TRIBUNAL CAN RECALL THE EX-PARTE TRIBUN AL ORDER BY DECIDING AN M.P. FILED BY THE ASSESSEE AFTER EXPIRY OF LIMITATI ON PERIOD. THE ISSUE IN DISPUTE IN THAT CASE WAS WHETHER THE TRIBUNAL CAN R ECALL THE TRIBUNAL ORDER IN WHICH THE ISSUE WAS DECIDED ON MERIT. SINCE THE FACTS AND ISSUES ARE DIFFERENT, THIS JUDGEMENT OF HONBLE MADRAS HIGH CO URT IS NOT RELEVANT IN THE PRESENT CASE. 9. THE THIRD JUDGMENT CITED BEFORE US IS THE JUDGEM ENT OF HON'BLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF SRI MUNINAGA RED DY VS. ACIT (SUPRA). IN THIS CASE, THE TRIBUNAL ORDER WAS DATED 13.01.20 15 AND THE M.P. AGAINST THIS TRIBUNAL ORDER WAS FILED BY THE ASSESSEE ON 30 .12.2016 AND AS PER THE TRIBUNAL ORDER IN M.P. DATED 21.06.2017, THE M.P. O F ASSESSEE WAS DISMISSED AS BARRED BY LIMITATION. AGAINST THIS OR DER OF TRIBUNAL IN M.P. PROCEEDINGS, THE ASSESSEE FILED A WRIT PETITION BEF ORE HON'BLE KARNATAKA HIGH COURT. IN OUR CONSIDERED OPINION, PARAS 9 AND 10 OF THIS JUDGEMENT ARE VERY MUCH RELEVANT AND HENCE, WE REPRODUCE THE SAME HEREINBELOW FOR READY REFERENCE. 9. IT IS ALSO NOT IN DISPUTE THAT THE TRIBUNAL PROC EEDED TO DISMISS THE MISC.PETITION MAINLY ON THE GROUND THAT THE TRIBUNA L CANNOT CONDONE THE DELAY OF MORE THAN SIX MONTHS IN VIEW OF THE PR OVISIONS OF SECTION 254(2) OF THE ACT AND PROCEEDED TO DISMISS THE APPL ICATION. IT IS ALSO NOT IN DISPUTE THAT DURING THE PROCESS, THERE WAS A DELAY OF 11 MONTHS 17 DAYS. AFTER DEDUCTING THE TIME STIPULATED UNDER SECTION 254(2) OF THE ACT ABOUT 4 MONTHS 10 DAYS WOULD BE THE DELAY. THE APPELLANT HAS EXPLAINED THE DELAY IN FILING THE MISC. PETITION. T HOUGH UNDER THE PROVISIONS OF SECTION 254 THE TRIBUNAL CANNOT GO BE YOND THE M.P. NO. 325/BANG/2018 (IN IT(TP)A NO. 104/BANG/2016) PAGE 5 OF 9 PROVISIONS OF THE SAID SECTION, THE FACT REMAINS TH AT THE PETITIONER HAS SUBSTANTIATED THAT INJUSTICE IS BEING DONE BY NOT F OLLOWING THE DIVISION BENCH DECISION OF THIS COURT. THEREFORE, I N ORDER TO DO SUBSTANTIAL JUSTICE, THIS COURT EXERCISING THE POWE R UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA CAN CONDONE TH E DELAY AS HELD BY THE DIVISION BENCH OF THIS COURT IN THE CASE OF PRACTICE STRATEGIC COMMUNICATIONS INDIA PRIVATE LIMITED .VS. C.S.T., D OMLUR, REPORTED IN 2016(45) S.T.R. 47(KAR.) WHEREIN THIS COURT AT PARAGRAPH (11) HAS HELD AS UNDER:- 11. IN VIEW OF THE ABOVE REFERRED DECISION OF THIS COURT, IF THIS COURT FINDS THAT THE AUTHORITY HAS PASSED THE ORDER WITHOUT JURISDICTION OR HAS EXERCISED THE POWER IN EXCESS O F THE JURISDICTION OR BY OVER-STEPPING OR CROSSING THE LI MIT OF JURISDICTION OR THAT THERE IS FAILURE OF JUSTICE, O R IT HAS RESULTED IN GROSS INJUSTICE, IT WOULD BE A CASE FALLING UNDE R THE EXCEPTIONAL CATEGORY OF EXERCISING THE POWER UNDER ARTICLE 226 OF THE CONSTITUTION AND TO INTERFERE WITH THE ORDER OF THE ORIGINAL AUTHORITY OR THE APPELLATE AUTHORITY, AS THE CASE M AY BE. IN ORDER TO FIND OUT AS TO WHETHER THE CASE IS FIT FOR EXERC ISING OF THE POWER UNDER ARTICLE 226 OF THE CONSTITUTION, WE MAY RECOR D THAT AS PER THE DECISION OF THE DELHI HIGH COURT, RULE 5, ON TH E BASIS OF WHICH THE ORIGINAL AUTHORITY HAS PASSED THE ORDER FOR LEV YING OF TAX IS HELD TO BE ULTRA VIRES TO SECTION 67 OF THE ACT. FU RTHER, THE MATTER MAY FALL IN THE REALM OF CORRECT INTERPRETATION OF SECTION 67 AS TO WHETHER THE EXPENSES REIMBURSED BY THE CONSUMER TO THE SERVICE PROVIDER, CAN BE INCLUDED FOR THE PURPOSE OF COMPUT ATION OF THE SERVICE TAX OR NOT. WE DO NOT PROPOSE TO EXPRESS AN Y FURTHER VIEW ON THE SAID ASPECTS IN VIEW OF THE ORDER WHICH WE M AY PASS HEREIN AFTER, BUT SUFFICE IT TO OBSERVE THAT IN VIEW OF TH E DECISION OF THE DELHI HIGH COURT, THERE WAS A STRONG CASE ON MERITS ON THE PART OF THE PETITIONER TO BE CONSIDERED BY THE TAXING AUTHO RITY. UNFORTUNATELY THE DECISION OF THE DELHI HIGH COURT THOUGH WAS SPECIFICALLY BROUGHT TO THE NOTICE OF THE ORIGINAL AUTHORITY IN THE REPLY TO THE SHOW CAUSE NOTICE, IN THE IMPUGNED ORD ER OF THE ORIGINAL AUTHORITY, THERE IS NO REFERENCE WHATSOEVE R. UNDER THESE CIRCUMSTANCES, WE FIND THAT THE CASE MAY FALL IN TH E EXCEPTIONAL CATEGORY FOR EXERCISE OF THE POWER UNDER ARTICLE 22 6 OF THE CONSTITUTION. 10. IN VIEW OF THE DICTUM OF THE DIVISION BENCH OF THIS COURT STATED SUPRA, THE PETITIONER HAS MADE OUT A CASE THAT HIS CASE FALLS UNDER EXCEPTIONAL CATEGORY FOR EXERCISING POWER UNDER ART ICLES 226 AND 227 OF THE CONSTITUTION OF INDIA TO INTERFERE WITH THE ORDER PASSED BY THE TRIBUNAL DISMISSING THE MISC. PETITION ONLY ON THE GROUND OF DELAY. 10. FROM THE ABOVE PARAS OF THIS JUDGEMENT OF HON'B LE KARNATAKA HIGH COURT, WE FIND THAT IT WAS HELD BY HON'BLE KARNATAKA HIGH COURT IN THIS CASE THAT M.P. NO. 325/BANG/2018 (IN IT(TP)A NO. 104/BANG/2016) PAGE 6 OF 9 UNDER THE PROVISIONS OF SECTION 254, THE TRIBUNAL C ANNOT GO BEYOND THE PROVISIONS OF THE SAID SECTION AS PER WHICH THE TRI BUNAL CANNOT CONDONE THE DELAY OF MORE THAN SIX MONTHS. BUT IT WAS HELD THA T UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, HONBLE HIGH COUR T CAN CONDONE THE DELAY AND ACCORDINGLY, HON'BLE KARNATAKA HIGH COURT ALLOW ED THE WRIT PETITION HOLDING THAT THE PETITIONER HAS MADE OUT A CASE THA T HIS CASE FALLS UNDER EXCEPTIONAL CATEGORY FOR EXERCISING POWER UNDER ART ICLES 226 AND 227 OF THE CONSTITUTION OF INDIA TO INTERFERE WITH THE ORDER P ASSED BY THE TRIBUNAL DISMISSING THE MISC. PETITION ONLY ON THE GROUND OF DELAY. IN OUR CONSIDERED OPINION, HONBLE HIGH COURT CAN CONDONE THE DELAY U NDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA BUT THIS TRIBUNAL HAS NO SUCH POWER. IN FACT AS PER THIS JUDGMENT OF HON'BLE KARNATAKA HIGH COUR T, THIS ISSUE IS COVERED AGAINST THE ASSESSEE BECAUSE IN THIS JUDGMENT, IT W AS HELD BY HON'BLE KARNATAKA HIGH COURT THAT THE TRIBUNAL CANNOT GO BE YOND THE PROVISIONS OF SECTION 254(2) WHICH PROVIDES THAT THE TRIBUNAL CAN NOT CONDONE THE DELAY OF MORE THAN SIX MONTHS IN VIEW OF PROVISIONS OF SECTI ON 254(2) OF IT ACT. THEREFORE, THIS JUDGMENT IS NOT RENDING ANY HELP TO ASSESSEE IN THE PRESENT CASE. 11. THE LAST JUDGMENT CITED BY LD. AR OF ASSESSEE I S THE JUDGEMENT OF HONBLE MADRAS HIGH COURT RENDERED IN THE CASE OF N.S. MOHA N VS. ITO (SUPRA). IN THIS CASE, THE TRIBUNAL DISMISSED THE APPEAL OF THE ASSESSEE EX-PARTE QUA THE ASSESSEE. AGAINST THIS EX-PARTE TRIBUNAL ORDER DATED 20.06.2017, THE ASSESSEE FILED WRIT PETITION BEFORE HONBLE MADRAS HIGH COURT. THIS WRIT PETITION WAS DECIDED BY HONBLE MADRAS HIGH COURT A S PER PARA NOS. 9 TO 12 OF THIS JUDGMENT AVAILABLE ON PAGE NO. 26 OF PAPER BOOK. THE SAME ARE REPRODUCED HEREINBELOW FOR READY REFERENCE. 9. AN APPEAL LIES ONLY ON A SUBSTANTIAL QUESTION OF LAW UNDER SECTION 260A OF THE INCOME TAX, 1961. WHETHER AN APPEAL WOU LD BE ENTERTAINED OR NOT WOULD DEPEND ON THE SATISFACTION OF THE HIGH COURT THAT THERE WAS NOT JUST A QUESTION OF LAW, BUT A SU BSTANTIAL QUESTION OF LAW. THIS IS NOT A CASE WHERE THERE IS AN AUTOMATIC APPEAL PROVISION AVAILABLE. IT CANNOT BE SAID THAT THE PETITIONER HA D AN EQUALLY EFFICACIOUS ALTERNATIVE REMEDY. M.P. NO. 325/BANG/2018 (IN IT(TP)A NO. 104/BANG/2016) PAGE 7 OF 9 10. ARTICLE 226 OF THE CONSTITUTION OF INDIA DOES N OT IMPOSE ANY LIMITATION ON THE POWER OF THE HIGH COURT TO ISSUE WRITS, EVEN WHEN THERE IS AN ALTERNATIVE REMEDY. WHERE THERE IS AN E FFICACIOUS ALTERNATIVE REMEDY THIS COURT REFRAINS FROM EXERCIS ING ITS EXTRA ORDINARY JURISDICTION. THIS COURT WOULD NOT REJECT AN APPLICATION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, WHE RE THE REMEDY, IF ANY, OF APPEAL IS UNCERTAIN AS IN THE CASE OF AN AP PEAL UNDER SECTION 260A OF THE 1961 ACT WHICH DEPENDS ON THE SUBJECTIV E SATISFACTION OF THE DIVISION BENCH OF THE HIGH COURT, OF EXISTENCE OF A SUBSTANTIAL QUESTION OF LAW. 11. IN ANY CASE, THERE ARE AT LEAST 3 EXCEPTIONS TO THE RULE OF ALTERNATIVE REMEDY. A WRIT APPLICATION MIGHT BE ENT ERTAINED WHERE THE ORDER IS IN VIOLATION OF PRINCIPLES OF NATURAL JUST ICE, WHERE THE ORDER HAS BEEN PASSED UNDER A LAW WHICH IS ULTRA VIRES OR IS OTHERWISE WITHOUT JURISDICTION OR IN CASE OF AN ORDER WHICH I S PERVERSE. THE ORDER IMPUGNED IS PATENTLY REPUGNANT TO SECTION 254 OF THE 1961 ACT READ WITH RULE 24 OF THE 1963 RULES. 12. THE WRIT PETITION IS ALLOWED AND THE IMPUGNED O RDER CANNOT BE SUSTAINED AND THE SAME IS SET ASIDE. THE LEARNED TR IBUNAL IS DIRECTED TO CONSIDER THE MATTER ON MERITS AND TAKE A FRESH D ECISION IN ACCORDANCE WITH LAW, PREFERABLY WITHIN 45 DAYS FROM THE DATE OF COMMUNICATION OF THIS ORDER. CONSEQUENTLY, W.M.P.NO .10105 OF 2018 IS CLOSED. 12. AS PER THE FIRST PARA OF THIS JUDGMENT, IT IS N OTED BY HONBLE MADRAS HIGH COURT THAT THE TRIBUNAL DISMISSED THE APPEAL OF THE ASSESSEE ON 20.06.2017V ON THE GROUND THAT NONE APPEARED ON BEHALF OF THE A SSESSEE AND THE SHORT QUESTION INVOLVED IN THIS WRIT PETITION IS WHETHER THE APPEAL COULD HAVE BEEN DISMISSED ON THE GROUND OF DEFAULT. HENCE, IT IS SE EN THAT IN THIS CASE, THIS WAS NOT THE ISSUE BEFORE HONBLE MADRAS HIGH COURT THAT WHETHER THE TRIBUNAL CAN RECALL AN EXPARTE ORDER OF THE TRIBUNA L UNDER RULE 24 IN A CASE WHERE THE M. P. FILED BY THE ASSESSEE IS TIME BARRE D. FROM THE ABOVE PARAS REPRODUCED FROM THIS JUDGEMENT OF HONBLE MADRAS HI GH COURT, IT IS SEEN THAT THIS JUDGEMENT IS NOT IN RELATION TO THE M.P. DISMISSED BY THE TRIBUNAL FOR FILING IT BEYOND THE LIMITATION PERIOD. IN THI S CASE, THE WRIT PETITION WAS FILED BY THE ASSESSEE AGAINST AN EX-PARTE TRIBUNAL ORDER AND THE SAID EX- PARTE TRIBUNAL ORDER WAS SET ASIDE BY HONBLE MADRA S HIGH COURT AND THE MATTER WAS RESTORED BACK TO THE TRIBUNAL FOR A FRES H DECISION. HENCE THIS M.P. NO. 325/BANG/2018 (IN IT(TP)A NO. 104/BANG/2016) PAGE 8 OF 9 JUDGEMENT IS ALSO NOT RENDERING ANY HELP TO ASSESSE E IN THE FACTS OF THE PRESENT CASE. 13. AS PER ABOVE DISCUSSION, WE HAVE SEEN THAT NONE OF THE FOUR JUDGEMENTS CITED BY LD. AR OF ASSESSEE IS RENDERING ANY HELP T O ASSESSEE IN THE PRESENT CASE. IN FACT AS PER THE JUDGEMENT OF HON'BLE KARN ATAKA HIGH COURT, THE ISSUE IS COVERED AGAINST THE ASSESSEE BECAUSE IN TH IS CASE, IT WAS HELD BY HON'BLE KARNATAKA HIGH COURT THAT THE TRIBUNAL CANN OT GO BEYOND THE PROVISIONS OF SECTION 254(2) OF IT ACT AND CONDONE THE DELAY IN FILING THE M.P. HENCE BY RESPECTFULLY FOLLOWING THIS JUDGEMEN T OF HON'BLE KARNATAKA HIGH COURT, WE HOLD THAT THE PRESENT M.P. FILED BY THE ASSESSEE IS TIME BARRED AND THE SAME IS NOT ADMISSIBLE. 14. BEFORE PARTING, WE WOULD LIKE TO OBSERVE THAT E VEN IF THIS M. P. WOULD HAVE BEEN FILED IN TIME AND WE CONSIDER AND DECIDE THE S AME, IT HAS NO MERIT BECAUSE IN THE M. P., NO REASONING IS GIVEN ABOUT NON APPEA RANCE OF THE ASSESSEE OR HIS AR ON THE APPOINTED DATE OF HEARING TO ARGUE THE AP PEAL. AS PER PARA 2 OF THE PRESENT M. P., THE ASSESSEE SAYS THAT ON 22 ND NOVEMBER, 2011, MR. HARI UPADHYAYA, THE SENIOR ACCOUNTS OFFICER OF THE ASSES SEE COMPANY APPEARED TO FILE AN APPLICATION FOR ADJOURNMENT BUT THE SAME WA S DENIED BY THE TRIBUNAL AND THE APPEAL WAS HEARD EX PARTE. THIS IS TO BE NOTED THAT THIS IS M. P. IS DRAFTED AND FILED VERY CASUALLY. THE DATE OF HEARING AS PER THE TRIBUNAL ORDER WAS 22.11.2016 BUT THE ASSESSEE SAYS IN THE M. P. THAT IT WAS 22.1 1.2011. THIS APPEARS TO BE A TYPING MISTAKE BUT THE SAME SHOULD HAVE BEEN RECTIF IED BEFORE SIGNING AND FILING. GRANTING OF ADJOURNMENT ON REQUEST CANNOT BE TAKEN AS ASSURED. IN THE PARA 3 OF THE M. P., THE ASSESSEE SAYS THAT THE ASSESSEE C OMPANY HAD NOT DECIDED ON THE COUNSEL TO REPRESENT THEM AND HAD NOT FILED THE PAPER BOOK FOR HEARING. BOTH THESE CONTENTIONS ARE FACTUALLY INCORRECT BECAUSE A S PER THE APPEAL FILE, IT IS SEEN THAT LETTER OF AUTHORISATION IS ALREADY AVAILABLE O N RECORD AS PER WHICH, THE ASSESSEE HAS AUTHORIZED SHRI K. R. PRADEEP, A CHART ERED ACCOUNTANT TO REPRESENT THE ASSESSEE AND THE SAME IS DULY ACCEPTE D AND FILED BY THE SAID CHARTERED ACCOUNTANT. A PAPER BOOK OF 143 PAGES IS ALSO AVAILABLE IN THE APPEAL FILE. EVEN NON FINALIZATION OF COUNSEL AND NON FILI NG OF PAPER BOOK CANNOT BE CONSIDERED AS A REASONABLE CAUSE FOR NON APPEARANCE ON THE DATE OF HEARING. M.P. NO. 325/BANG/2018 (IN IT(TP)A NO. 104/BANG/2016) PAGE 9 OF 9 HENCE, THE REQUIREMENTS OF RULE 24 ARE ALSO NOT BEI NG SATISFIED IN THE PRESENT CASE. 15. IN THE RESULT, THE M.P. FILED BY THE ASSESSEE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 25 TH JANUARY, 2019. /MS/ COPY TO: 1. APP ELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.