ACIT(TDS) Circle-2(1), Hyderabad V. M/s Planet Online Private Limited, Secunderabad

MA 36/Hyd/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5778 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 22-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L R AMJI RAO
• Assessee Lawyers: P MURALI MOHAN RAO
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 143(3); 10

Judgement Text

MA NO 36 OF 2017 PLANE T ONLINE P LTD SECUNDERABAD PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S.RIFAUR RAHMAN, ACCOUNTANT MEMBER M.A. NO. 36/HYD/2017 (ARISING OUT OF ITA NOS.1967 & 1968/HYD/2014) (ASSESSMENT YEARS:2011-12 & 2012-13) ASSTT. COMMISSIONER OF INCOME TAX (TDS), CIRCLE 2(1), HYDERABAD VS M/S. PLANET ONLINE (P) LTD SECUNDERABAD PAN: AAECS 1624 F (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI L. RAMJI RAO, DR FOR ASSESSEE : SHRI P. MURALI MOHAN RAO O R D E R PER SMT. P. MADHAVI DEVI, J.M. THIS MISCELLANEOUS APPLICATIONS IS FILED BY THE REVENUE ON 19.06.2017 SEEKING RECTIFICATION OF THE ALLEGED MISTAKES IN THE ORDER OF THE TRIBUNAL DATED 13.11.2 015. 2. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSES SEE BROUGHT TO OUR NOTICE THAT THIS M.A IS NOT MAINTAIN ABLE SINCE IT HAS BEEN FILED BEYOND SIX MONTHS FROM THE DATE OF T HE ORDER/AMENDMENT TO SECTION 254(2) OF THE ACT BY THE FINANCE ACT, 2016. DATE OF HEARING : 04.08.2017 DATE OF PRONOUNCEMENT : 27.09.2017 MA NO 36 OF 2017 PLANE T ONLINE P LTD SECUNDERABAD PAGE 2 OF 5 3. THE LEARNED DR, HOWEVER, DREW OUR ATTENTION TO T HE AFFIDAVIT FOR CONDONATION OF DELAY STATING THAT THE DELAY OF 373 DAYS IN FILING THE M.A PETITION IS DUE TO THE DELAY IN RECEIVING AUTHORIZATION LETTER FROM THE CIT (TDS) FOR FILING THE M.A. 4. THE LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTH ER HAND, DREW OUR ATTENTION TO THE DECISION OF THE COO RDINATE BENCH OF THE TRIBUNAL AT MUMBAI IN THE CASE OF DCIT VS. H ITA LAND PVT LTD & OTHERS IN M.A. NOS. 103 TO 107/MUM/2017 DATED 25.04.2017 WHEREIN, AFTER TAKE NOTE OF THE AMENDED PROVISIONS OF SECTION 254(2) OF THE ACT BY THE FINANCE ACT, 2016 I T HAS BEEN HELD THAT THE TRIBUNAL CANNOT CONDONE THE DELAY IN FILING OF THE M.A BEFORE THE TRIBUNAL BEYOND A PERIOD OF SIX MONT HS FROM 1.6.2016. 5. THE LEARNED DR, ON THE OTHER HAND FILED A NOTE O N THE AMENDMENT TO SECTION 254(2) OF THE ACT TO STATE THA T THE AMENDMENT TO SECTION 254(2) BY THE FINANCE ACT IS ON LY PROSPECTIVE IN NATURE AND SHOULD APPLY ONLY TO THE ORDERS PASSED BY ITAT AFTER 1.6.2016. 6. BOTH THE PARTIES REITERATED THE SUBMISSIONS MADE AS ABOVE. AFTER GOING THROUGH THE RIVAL CONTENTIONS AN D ALSO DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. HITA LAND PVT LTD & OTHERS (CITED SUPRA), WE FIND T HAT THE COORDINATE BENCH OF THE TRIBUNAL HAS CONSIDERED THE AMENDED PROVISIONS OF SECTION 254(2) OF THE ACT AND ALSO WH ETHER IT WAS, APPLICABLE TO THE ORDERS PASSED BY THE TRIBUNAL PRI OR TO 1.6.2016 MA NO 36 OF 2017 PLANE T ONLINE P LTD SECUNDERABAD PAGE 3 OF 5 AND HAS HELD THAT THE M.AS FILED AFTER SIX MONTHS OF THE ORDER OR EVEN FROM 1.6.2016 ARE NOT MAINTAINABLE. FOR THE SAK E OF CLARITY AND READY REFERENCE, THE RELEVANT PORTION IS REPROD UCED HEREUNDER: 2. THE REVENUE HAS CONTENDED THAT THE TRIBUNAL ALLOWED THE GROUND NUMBERS 1 & 2 OF ASSESSEE'S APPEAL FOR A Y 2007-08, 2008-09 & 2009-10 PRESUMING THAT THE ASSESSMENT ORDERS IN ALL THE YEARS WERE PASSED U/S 143(3) READ WITH SECTION 153C. HOWEVER, THE ASSESSMENT ORDER FOR 2009- 10 WAS PASSED U/S 143(3) AND NOT UNDER SECTION 143(3) READ WITH SECTION 153C AND THEREFORE, A MISTAKE APPARENT FROM RECORD HAS CREPT INTO THE ORDER AND THE MATTER FOR 2009-10 REQUIRES FRESH ADJUDICATION WHICH HAS LED TO FILING OF THESE RECTIFICATION PETITIONS U/S 254(2). 3. AT THE OUTSET, THE LD. COUNSEL FOR ASSESSEE [AR], WHILE DRAWING OUR ATTENTION TO THE STATUTORY PROVISIONS AS CONTAINED IN SECTION 254(2) VIS-A- VIS DATE OF RECTIFICATION APPLICATION FILED BY THE REVENUE, RAISED A PRELIMINARY LEGAL OBJECTION THAT THESE APPLICATIONS, BEING TIME BARRING, COULD NOT BE ENTERTAINED PARTICULARLY WHEN THE POWER OF CONDONATION WAS NOT PROVIDED UNDER THE STATUTE. RELIANCE HAS BEEN PLACED ON THE JUDGMENT OF BHARAT PETROLEUM CORPORATION LTD. VS A CIT [158 TTL (MUMBAI) 165 ORDER DATED 10/04/2013}. THE REVENUE HAS CONTENDED THAT THE APPLICATION HAS BEEN FILED WITHIN A PERIOD OF FOUR YEARS FROM THE DATE OF THE ORDER AND HENCE, THE APPLICATIONS WERE WITHIN TIME AS PER THE EARLIER PROVISIONS. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED RELEVANT MATERIAL ON RECORD. SINCE, PRELIMINARY LEGAL OBJECTIONS QUESTIONS THE VERY ADMISSIBILITY OF THESE RECTIFICATION APPLICATIONS, WE TAKE UP THE SAME FIRST. FOR RECORD, WE NOTE THAT THE DATE OF ORDER PASSED BY THE TRIBUNAL IS 22/03/2013 AND THE REVENUE HAS FILED THESE MA NO 36 OF 2017 PLANE T ONLINE P LTD SECUNDERABAD PAGE 4 OF 5 APPLICATIONS ON 28/02/2017 WHICH ARE CLEARLY BEYOND A PERIOD OF SIX MONTHS AS PROVIDED IN SECTION 254(2). AT THIS JUNCTURE, IT WOULD BE PRUDENT TO REPRODUCE THE RELEVANT PROVISIONS AS CONTAINED IN SECTION 254(2) OF THE INCOME TAX ACT, 1961:- ORDERS OF APPELLATE TRIBUNAL. 254. (1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING B OTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD , PASS SUCH ORDERS THEREON AS IT THINKS FIT. (IA) [***] (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 APPAR ENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB- SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE I S BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESS ING OFFICER: IT IS TO BE NOTED THAT THE EARLIER PERIOD OF 'FOUR YEARS' HAS BEEN SUBSTITUTED WITH 'SIX MONTHS' BY THE FINANCE ACT, 2016 WITH EFFECT FROM 01/06/2016. HOWEVER, WE FIND THAT NO DISTINCTION HAS BEEN MADE IN THIS SECTION BETWEEN ORDERS PASSED BEFORE 01/06/2016 AND ORDERS PASSED AFTER 01/06/2016. MOREOVER, THE TRIBUNAL ORDER WAS DATED 22/03/2013 AND THEREFORE, THE REVENUE HAD AMPLE TIME TO GO THROUGH THE SAME AND PIN POINT THE MISTAKES IN THE ORDER BUT IT HAS FAILED TO DO SO. THEREFORE, WE FIND NO FORCE IN THESE MISCELLANEOUS PETITIONS PRIMARILY BECAUSE OF THE REASON THAT THE STATUTE DOES NOT AUTHORIZE US TO ENTERTAIN ANY PETITION WHICH HAS BEEN FILED U/S 254(2) AT ANY TIME BEYOND A PERIOD OF SIX MONTHS FROM THE DATE OF THE ORDER. THE TRIBUNAL HAS BEEN GIVEN POWER TO ADMIT AN APPEAL AFTER THE EXPIRY OF THE RELEVANT PERIOD, IF IT IS SATISFIED THAT THERE W AS SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD AS PER SECTION 253(5). HOWEVER, THIS TRIBUNAL IS NOT ENSHRINED WITH SUCH POWERS IN MA NO 36 OF 2017 PLANE T ONLINE P LTD SECUNDERABAD PAGE 5 OF 5 RESPECT OF A MISCELLANEOUS PETITION FILED U/S 254(2) OF THE INCOME TAX ACT. IF WE ARE NOT GIVEN THAT POWER, THEN IT IS NOT EXPECTED FROM US TO EXERCISE SUCH POWER WHICH IS NOT PROVIDED IN THE ACT. THE TRIBUNAL, BEING CREATION OF LAW, IS BOUND BY THE STATUTORY PROVISIONS AND OUR JURISDICTION IS SIMPLY TO INTERPRET AND FOLLOW THE STATUTE. THERE IS NO SCOPE FOR US TO IMPORT ANY WORD INTO THE STATUTE WHICH IS NOT THERE. SUCH IMPORTATION WOULD BE NOTHING BUT TO AMEND THE STATUTE. WE THEREFORE HOLD THAT THE CONDONATION OF DELAY OF THESE PETITIONS IS BEYOND OUR JURISDICTION, HENCE REJECTED. SIMILAR VIEW HAS BEEN TAKEN BY THE MUMBAI TRIBUNAL IN THE CITED ORDER. HENCE, FINDING THE PETITIONS TIME BARRING, WE DISMISS THE SAME. 7. RESPECTFULLY FOLLOWING THE SAME, THIS M.A IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH SEPTEMBER, 2017. SD/- SD/- (S.RIFAUR RAHMAN) ACCOUNTANT MEMBER (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 27 TH SEPTEMBER, 2017. VINODAN/SPS COPY TO: 1 ACIT (TDS) CIRCLE 2(1) HYDERABAD (PREVIOUSLY DCIT CIRCLE 15(1) 4 TH FLOOR, ROOM NO.442, IT TOWERS, AC GUARDS, HYDERABAD 2 DCIT CIRCLE 15(2) HYDERABAD 3 M/S PLANET ONLINE P LTD UNIT 603/604 ASHOK BHOOPA L CHAMBERS SP ROAD, SECUNDERABAD 4 CIT (A) II HYDERABAD 5 CIT-II HYDERABAD 6 CIT (TDS) HYDERABAD 7 THE DR, ITAT HYDERABAD 8 GUARD FILE BY ORDER