HEMANG DINESH JANGLA, V. ITO 8(2)(1),

MA 367/MUM/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3268 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-07-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2001-2002
• Appeal Filed On: 20-08-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PAVAN KUMAR BEER LA
• Keywords: Rectification of order; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ' H ' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI R.C. SHARMA , ACCOUNTANT MEMBER MA NO. 367/MUM/2014 (ARISING OUT OF ITA NO. 3492/MUM/2000) (ASSESSMENT YEAR: 2001 - 02 ) HEMANG DINESH JANGLA VS. INCOME TAX OFFICER - 8(2)(1) 205, PADMA CHS LTD. S.V. ROAD, VILE PARLE (W) MUMBAI 40066 MUMBAI PAN - ADLPJ1142Q APPLICANT RESPONDENT APPLICANT BY: NONE RESPONDENT BY: PAVAN KUMAR BEERLA DATE OF HEARING: 10.07. 2015 DATE OF PRONOUNCEMENT: 10.07.2015 O R D E R PER D. MANMOHAN, V.P. BY THIS MISCELLANEOUS APPLICATION ASSESSEE SEEKS RECALL OF THE ORDER DATED 24.02.2010 PASSED BY ITAT H BENCH, MUMBAI WHEREIN THE TRIBUNAL NOTICED THAT THERE WAS SHORT PAYMENT OF INSTITUTION FEE S BUT THE ASSESSEE DID NOT RECTIFY THE SAME EVEN AFTER ISSUING DEFECT MEMO , BY WHICH THE APPEAL BECOMES NON - MAINTAINABLE; THEREFORE THE APPEAL WAS DISMISSED AS UNADMITTED, FOR SHORT PAYMENT OF INSTITUTION FEE S . 2. SECTION 254(2) OF THE INCOME TAX ACT SPEAKS OF RECTIFICATION OF MISTAKE APPARENT FROM RECORD. THE TRIBUNAL, AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM RECORD, AMEND ANY ORDER PASSED BY IT U NDER SECTION 254(1), IF THE MISTAKE IS BROUGHT TO THE NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER. IT WOULD THUS BE SEEN THAT EITHER THE ASSESSEE OR THE REVENUE CAN BRING OUT A MISTAK E ON RECORD WITHIN A PERIOD OF FOUR YEARS RECKONED FROM THE DATE OF T HE ORDER. IN THE INSTANT CASE THE ORDER HAVING BEEN PASSED BY THE ITAT ON 24.02.2010, IT CAN BE RECONSIDERED UNDER SECTION 254(2) OF THE ACT IF AN APPLICATION IS MADE BY MA NO. 367/MUM/2014 HEMANG DINESH JANGLA 2 EITHER PARTY ON OR BEFORE 24 TH FEBRUARY, 2014. IN THE INSTANT CASE THE ASSESSEE MOVED AN APPLICATION ON 30 TH DAY OF JULY, 2014 SEEKING RECALL OF THE ORDER ON THE GROUND THAT THE ASSESSEE BEING A LAYMAN HE WAS UNAWARE OF THE PROCEDURES AND RULES OF INCOME TAX ACT AND THEREFORE APPEAL FEE WAS PAID AT THE OLD RATE OF ` 500/ - BUT NOW PAID THE DE FICIT FEE. 3. IT MAY BE NOTICED THAT THE ASSESSEE IS REPRESENTED BY A CHARTERED ACCOUNTANT BEFORE THE CIT(A) AND IN FACT THE CASE WAS ADJOURNED FROM TIME TO TIME AT THE REQUEST OF THE ASSESSEE BUT ON THE DATE FIXED FOR HEARING NONE APPEARED AND THEREFORE THE APPEAL WAS DISPOSED OF EXPARTE, QUA THE ASSESSEE, WHEREIN THE TRIBUNAL NOTED THAT THE APPEAL CANNOT BE ADMITTED FOR WANT OF PAYMENT OF SUFFICIENT INSTITUTION FEE. ASSESSEE MOVED AN APPLICATION ON THE PRINCIPLES OF NATURAL JUSTICE AND FAIRNESS AND EQUITY, S EEKING RECALL OF THE EARLIER ORDER. IT DESERVES TO BE NOTICED THAT JUSTICE IS MEANT FOR THOSE WHO ARE VIGILANT AND NOT THOSE WHO ARE INDOLENT. 4. THE MISCELLANEOUS APPLICATION WAS POSTED FROM TIME TO TIME BY CLEARLY MENTIONING THAT THE MA IS TIME BARRED. THOU GH THE ASSESSEE APPEARED AND SOUGHT ADJOURNMENT IN 2014 , THEREAFTER THE ASSESSEE DID NOT APPEAR THOUGH THE CASE WAS ADJOURNED FROM TIME TO TIME. UNDER THESE CIRCUMSTANCES WE DISPOSE OF THE MISCELLANEOUS APPLICATION EXPARTE, QUA THE ASSESSEE. 5. WE HEARD THE L EARNED D.R. AND CAREFULLY PERUSED THE RECORD. UNDER SECTION 254(2) OF THE INCOME TAX ACT AN ORDER PASSED UNDER SECTION 254(1) CAN BE RECALLED/RECTIFIED ONLY WITHIN FOUR YEARS FROM THE DATE OF THE ORDER WHEREAS IN THE INSTANT CASE THE APPLICATION WAS MOVED BEYOND THE PERIOD OF FOUR YEARS. IN FACT THE ASSESSEE CLAIMS TO HAVE PAID THE INSTITUTION FEES ON 19.05.2014, WHICH IN ITSELF IS BEYOND THE PERIOD OF FOUR YEARS AND EVEN AT THIS STAGE ASSESSEE DID NOT CHOOSE TO FILE THE MISCELLANEOUS APPLICATION IMMEDIATEL Y BUT ULTIMATELY FILED THE APPLICATION ON 20.08.2014 WHICH PROVES THAT THE ASSESSEE IS NOT VIGILANT. AT ANY RATE, IN THE LIGHT OF THE LANGUAGE EMPLOYED IN SECTION 254(2) OF THE ACT THE MISCELLANEOUS APPLICATION IS NOT MAINTAINABLE IF IT IS FILED BEYOND THE PERIOD OF FOUR YEARS RECKONED FROM THE DATE OF PASSING OF THE ORDER BY THE APPELLATE TRIBUNAL. UNDER THESE MA NO. 367/MUM/2014 HEMANG DINESH JANGLA 3 CIRCUMSTANCES WE DISMISS THE MISCELLANEOUS APPLICATION AS UNADMITTED, BY HOLDING THAT IT IS BARRED BY LIMITATION. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JULY, 2015. SD/ - SD/ - ( R.C. SHARMA ) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 10 TH JULY, 2015 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) VIII , MUMBAI 4. THE CIT VIII , MUMBAI CITY 5. THE DR, H BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI