Mr.B.Kunhi Ahmed , Mangalore V. Deputy Commissioner of Income Tax Central Circle, Mangalore

MA 374/BANG/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0071 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 04-12-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PARINEETH RAU
• Keywords: Period of limitation; Question of law; Reasonable cause; Time period of passing order; Set aside
• Section: 260A

Judgement Text

MP.374/BANG/2018 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BENGALURU BENCH 'A', BENGALURU BEFORE SHRI. A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI. LALIET KUMAR, JUDICIAL MEMBER MISC. PETITION NO.374/BANG/2018 (IN I.T.A NO.386/BANG/2017) (ASSESSMENT YEAR : 2012-13) SHRI. B. KUNHI AHMED, HASNAIN NADIR, OPP FATHER MULLERS HOSPITAL, DERALAKATTE, MANGALURU .. APPLICANT PAN : ABLPA9471B V. DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE, MANGALURU .. RESPONDENT ASSESSEE BY : SHRI. PARINEETH RAU, CA REVENUE BY : SMT. NANDINI DAS, ADDL. CIT HEARD ON : 29.03.2019 PRONOUNCED ON : 29.03.2019 O R D E R PER LALIET KUMAR, JUDICIAL MEMBER : THE PRESENT MISCELLANEOUS PETITION IS FILED BY THE ASSESSEE, SEEKING RECTIFICATION OF THE APPARENT ERROR THAT HA S CREPT IN THE ORDER OF THE TRIBUNAL DT.15.09.2017, FOR THE ASSESSMENT Y EAR, 2012-13, WAS FILED ON 04.12.2018. THE TRIBUNAL IN AN ORDER IN MP.94/BANG/2018, DT.11.05.2018, THE MP WAS DISMISSE D AS NOT MP.374/BANG/2018 PAGE - 2 MAINTAINABLE AS IT WAS FILED BEYOND THE STATUTORY P ERIOD OF SIX MONTHS. 02. THE LD. AR HAD SUBMITTED THAT AN AFFIDAVIT HAS BEEN FILED EXPLAINING THE REASONS FOR THE DELAY IN FILING THE MP AND SUBMITTED THAT THE MP MAY BE ALLOWED AFTER CONDONING THE DELA Y. 03. PER CONTRA, THE LD. DR OPPOSED TO ENTERTAINING THE MP AS THE MP WAS FILED BEYOND THE LIMITATION PERIOD AND THE T RIBUNAL BEING A CREATURE OF THE STATUTE DO NOT HAVE INHERENT POWER TO CONDONE THE DELAY AND RELIED ON THE DECISION OF THE COORDINATE BENCH IN THE MATTER OF MP.325/BANG/2018, DT.25.01.2019 IN THE MA TTER OF KARATURI GLOBAL SERVICES. 04. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. UNDOUBTEDLY THE PRESENT MP IS FILED BEL ATEDLY AS THE ORDER OF THE TRIBUNAL WAS PASSED ON 15.09.2017 AND THE MP WAS FILED ON 04.12.2018. THUS THERE IS A DELAY OF EIGH T MONTHS AND FOUR DAYS IN FILING THE PRESENT MP. THE COORDINATE BENC H IN THE MATTER OF KARATURI GLOBAL SERVICES (SUPRA) HAD TAKEN THE SAME VIEW, WHICH IS AS UNDER : 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE F ACTS ARE NOT DISPUTED THAT THE IMPUGNED TRIBUNAL ORDER IS DA TED 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) AFTE R AMENDMENT, THE M.P. CAN BE FILED BY THE ASSESSEE WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE TRIBUNAL ORDER HAS BEEN PASS ED. THEREFORE, THE PRESENT M.P. COULD HAVE BEEN FILED BY THE ASSES SEE UP TO 31.05.2017 AND THEREFORE, THE PRESENT M.P. OF ASSES SEE IS TIME BARRED. IN LIGHT OF THESE FACTS, NOW WE EXAMINE TH E 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 RENDERED IN THE CASE OF S.P. BALASUBRAHMANYAM VS. A CIT (SUPRA). IN THIS CASE, THE TRIBUNAL ORDER WAS DATED 18.07.20 11 AND THE M.P. WAS FILED BY THE ASSESSEE ON 24.07.2015. HENCE THE RE WAS A DELAY MP.374/BANG/2018 PAGE - 3 OF JUST 6 DAYS AS NOTED BY HONBLE MADRAS HIGH COUR T IN PARA NO. 21 OF THIS JUDGMENT. ALTHOUGH HONBLE MADRAS HIGH COURT HAS REPRODUCED THE CONTENTS OF RULE 24 AND 25 OF INCOME TAX APPELLATE TRIBUNAL RULES, 1963 BUT AS PER PARA NO. 25 OF THIS JUDGEMENT AS AVAILABLE ON PAGE NO. 20 OF THE PAPER BOOK I.E. PAG E NO. 383 OF ITR 394, THE ISSUE WAS DECIDED AGAINST THE ASSESSEE 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 SUBSTANTI AL QUESTION OF LAW RAISED, IS ANSWERED AGAINST THE ASS ESSEE. ACCORDINGLY, THE INSTANT TAX CASE APPEAL IS DISMISS ED. 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. VENKATESAN & 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 TRIBUNAL DATED 03.05.2013, THE TRIBUNAL RECALLE D ITS EARLIER ORDER DATED 27.11.2012. WHAT IS THE DATE OF FILING OF M.P. IS NOT COMING OUT FROM THIS JUDGEMENT. AGAINST THIS ORDER OF THE TRIBUNAL IN M.P., REVENUE FILED AN APPEAL BEFORE HONBLE MAD RAS HIGH COURT IN WHICH IT WAS CONTENDED THAT THE TRIBUNAL O UGHT NOT TO HAVE RECALLED THE TRIBUNAL ORDER BECAUSE IN THE SAME TRI BUNAL ORDER, THE ISSUE WAS DECIDED ON MERIT. THE FOLLOWING TWO QUES TIONS OF LAW WERE RAISED BEFORE HONBLE MADRAS HIGH COURT WHICH ARE REPRODUCED HEREINBELOW FROM PAGE NO. 21 OF THE PAPE R BOOK. 1. WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS RIGHT IN RECALLING ITS ORIGINAL ORDER WHICH WAS PASSED 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 EA RLIER 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, TH IS IS NOT THE ISSUE IN DISPUTE AS TO WHETHER THE TRIBUNAL CAN RECALL TH E EX-PARTE TRIBUNAL ORDER BY DECIDING AN M.P. FILED BY THE ASS ESSEE AFTER EXPIRY OF LIMITATION PERIOD. THE ISSUE IN DISPUTE IN THAT CASE WAS MP.374/BANG/2018 PAGE - 4 WHETHER THE TRIBUNAL CAN RECALL THE TRIBUNAL ORDER IN WHICH THE ISSUE WAS DECIDED ON MERIT. SINCE THE FACTS AND IS SUES ARE DIFFERENT, THIS JUDGEMENT OF HONBLE MADRAS HIGH COURT 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 O F SRI MUNINAGA REDDY VS. ACIT (SUPRA). IN THIS CASE, THE TRIBUNAL ORDER WAS DATED 13.01.2015 AND THE M.P. AGAINST THIS TRIB UNAL 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. OF ASSESSEE WAS DIS MISSED AS BARRED BY LIMITATION. AGAINST THIS ORDER OF TRIBUN AL IN M.P. PROCEEDINGS, THE ASSESSEE FILED A WRIT PETITION BEF ORE HON'BLE KARNATAKA HIGH COURT. IN OUR CONSIDERED OPINION, P ARAS 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 PRO CEEDED TO DISMISS THE MISC.PETITION MAINLY ON THE GROUND THAT THE TRIBUNAL CANNOT CONDONE THE DELAY OF MORE THAN SIX MONTHS IN VIEW OF THE PROVISIONS OF SECTION 254(2) OF THE ACT AND PROCEED ED TO DISMISS THE APPLICATION. IT IS ALSO NOT IN DISPUTE THAT DUR ING THE PROCESS, THERE WAS A DELAY OF 11 MONTHS 17 DAYS. AFTER DEDUC TING THE TIME STIPULATED UNDER SECTION 254(2) OF THE ACT ABO UT 4 MONTHS 10 DAYS WOULD BE THE DELAY. THE APPELLANT HAS EXPLA INED THE DELAY IN FILING THE MISC. PETITION. THOUGH UNDER TH E PROVISIONS OF SECTION 254 THE TRIBUNAL CANNOT GO BEYOND THE PR OVISIONS OF THE SAID SECTION, THE FACT REMAINS THAT THE PETITIO NER 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 C AN CONDONE THE DELAY AS HELD BY THE DIVISION BENCH OF THIS COU RT IN THE CASE OF PRACTICE STRATEGIC COMMUNICATIONS INDIA PRIVATE LIMITED .VS. C.S.T., DOMLUR, 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 OF THE JURISDICTION OR BY OVER-STEPPING OR CROSSING TH E LIMIT OF JURISDICTION OR THAT THERE IS FAILURE OF JUSTICE, O R IT HAS RESULTED IN GROSS INJUSTICE, IT WOULD BE A CASE FAL LING UNDER MP.374/BANG/2018 PAGE - 5 THE EXCEPTIONAL CATEGORY OF EXERCISING THE POWER UN DER ARTICLE 226 OF THE CONSTITUTION AND TO INTERFERE WI TH THE ORDER OF THE ORIGINAL AUTHORITY OR THE APPELLATE AUTHORITY, AS THE CASE MAY BE. IN ORDER TO FIND OUT AS TO WHETHER THE CASE IS FIT FOR EXERCISING OF THE POWER UNDER ARTICLE 226 OF THE CO NSTITUTION, WE MAY RECORD THAT AS PER THE DECISION OF THE DELHI HIGH COURT, RULE 5, ON THE BASIS OF WHICH THE ORIGINAL AUTHORIT Y HAS PASSED THE ORDER FOR LEVYING OF TAX IS HELD TO BE ULTRA VI RES TO SECTION 67 OF THE ACT. FURTHER, 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 COMPUTATION OF THE SERV ICE TAX OR NOT. WE DO NOT PROPOSE TO EXPRESS ANY FURTHER VIEW ON THE SAID ASPECTS IN VIEW OF THE ORDER WHICH WE MAY PASS HERE IN AFTER, BUT SUFFICE IT TO OBSERVE THAT IN VIEW OF THE DECIS ION OF THE DELHI HIGH COURT, THERE WAS A STRONG CASE ON MERITS ON TH E 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 THE EXCEPTIONAL CATEGORY FOR EXERCISE OF THE POWER UNDE R ARTICLE 226 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 TH AT HIS CASE FALLS UNDER EXCEPTIONAL CATEGORY FOR EXERCISING POW ER UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA T O INTERFERE WITH THE ORDER PASSED BY THE TRIBUNAL DISMISSING TH E 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 H ON'BLE KARNATAKA HIGH COURT IN THIS CASE THAT UNDER THE PR OVISIONS OF SECTION 254, THE TRIBUNAL CANNOT GO BEYOND THE PROV ISIONS OF THE SAID SECTION AS PER WHICH THE TRIBUNAL CANNOT CONDO NE THE DELAY OF MORE THAN SIX MONTHS. BUT IT WAS HELD THAT UNDER A RTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, HONBLE HIGH COUR T CAN CONDONE THE DELAY AND ACCORDINGLY, HON'BLE KARNATAKA HIGH C OURT ALLOWED THE WRIT PETITION HOLDING THAT THE PETITIONER HAS M ADE OUT A CASE THAT HIS CASE FALLS UNDER EXCEPTIONAL CATEGORY FOR EXERCISING POWER UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF I NDIA TO INTERFERE MP.374/BANG/2018 PAGE - 6 WITH THE ORDER PASSED BY THE TRIBUNAL DISMISSING TH E MISC. PETITION ONLY ON THE GROUND OF DELAY. IN OUR CONSIDERED OPI NION, HONBLE HIGH COURT CAN CONDONE THE DELAY UNDER 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 COURT, THIS ISSUE IS COVERED AGAINST THE ASSESSEE BECAUSE IN TH IS JUDGMENT, IT WAS HELD BY HON'BLE KARNATAKA HIGH COURT THAT THE T RIBUNAL CANNOT GO BEYOND THE PROVISIONS OF SECTION 254(2) W HICH PROVIDES THAT THE TRIBUNAL CANNOT CONDONE THE DELAY OF MORE THAN SIX MONTHS IN VIEW OF PROVISIONS OF SECTION 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. MOHAN VS. ITO (SUPRA). IN THIS CASE, THE TRIB UNAL DISMISSED THE APPEAL OF THE ASSESSEE EX-PARTE QUA THE ASSESSE E. AGAINST THIS EX-PARTE TRIBUNAL ORDER DATED 20.06.2017, THE ASSES SEE FILED WRIT PETITION BEFORE HONBLE MADRAS HIGH COURT. THIS WR IT PETITION WAS DECIDED BY HONBLE MADRAS HIGH COURT AS PER PAR A NOS. 9 TO 12 OF THIS JUDGMENT AVAILABLE ON PAGE NO. 26 OF PAP ER BOOK. THE SAME ARE REPRODUCED HEREINBELOW FOR READY REFERENCE . 9. AN APPEAL LIES ONLY ON A SUBSTANTIAL QUESTION O F LAW UNDER SECTION 260A OF THE INCOME TAX, 1961. WHETHER AN APPEAL WOULD BE ENTERTAINED OR NOT WOULD DEPEND ON THE SAT ISFACTION OF THE HIGH COURT THAT THERE WAS NOT JUST A QUESTION O F LAW, BUT A SUBSTANTIAL QUESTION OF LAW. THIS IS NOT A CASE WHE RE THERE IS AN AUTOMATIC APPEAL PROVISION AVAILABLE. IT CANNOT BE SAID THAT THE PETITIONER HAD AN EQUALLY EFFICACIOUS ALTERNATIVE R EMEDY. 10. ARTICLE 226 OF THE CONSTITUTION OF INDIA DOES NOT IMPOSE ANY LIMITATION ON THE POWER OF THE HIGH COURT TO ISSUE WRITS, EVEN WHEN THERE IS AN ALTERNATIVE REMEDY. WHERE THERE IS AN EFFICACIOUS ALTERNATIVE REMEDY THIS COURT REFRAINS FROM EXERCISING ITS EXTRA ORDINARY JURISDICTION. THIS COURT WOULD N OT REJECT AN APPLICATION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, WHERE THE REMEDY, IF ANY, OF APPEAL IS UNCERTAIN AS IN TH E CASE OF AN APPEAL UNDER SECTION 260A OF THE 1961 ACT WHICH DEPENDS ON THE SUBJECTIVE SATISFACTION OF THE DIVISION BENCH OF TH E 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 MP.374/BANG/2018 PAGE - 7 WHERE THE ORDER IS IN VIOLATION OF PRINCIPLES OF NA TURAL JUSTICE, WHERE THE ORDER HAS BEEN PASSED UNDER A LAW WHICH I S ULTRA VIRES OR IS OTHERWISE WITHOUT JURISDICTION OR IN CASE OF AN ORDER WHICH IS PERVERSE. THE ORDER IMPUGNED IS PATENTLY REPUGNA NT TO SECTION 254 OF THE 1961 ACT READ WITH RULE 24 OF THE 1963 RULE S. 12. THE WRIT PETITION IS ALLOWED AND THE IMPUGNED O RDER CANNOT BE SUSTAINED AND THE SAME IS SET ASIDE. THE LEARNED TRIBUNAL IS DIRECTED TO CONSIDER THE MATTER ON MERITS AND TAKE A FRESH DECISION IN ACCORDANCE WITH LAW, PREFERABLY WITHIN 45 DAYS FROM THE DATE OF COMMUNICATION OF THIS ORDER. CONSEQUENT LY, 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 A PPEAL OF THE ASSESSEE ON 20.06.2017V ON THE GROUND THAT NONE APP EARED ON BEHALF OF THE ASSESSEE AND THE SHORT QUESTION INVOLVED IN THI S WRIT PETITION IS WHETHER THE APPEAL COULD HAVE BEEN DISMISSED ON THE GROUND OF DEFAULT. HENCE, IT IS SEEN THAT IN THIS CASE, THIS WAS NOT T HE ISSUE BEFORE HONBLE MADRAS HIGH COURT THAT WHETHER THE TRIBUNAL CAN REC ALL AN EXPARTE ORDER OF THE TRIBUNAL UNDER RULE 24 IN A CASE WHERE THE M. P. FILED BY THE ASSESSEE IS TIME BARRED. FROM THE ABOVE PARAS REPRODUCED FROM THIS JUDGEMENT OF HONBLE MADRAS HIGH 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 THIS CA SE, 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 MA DRAS HIGH COURT AND THE MATTER WAS RESTORED BACK TO THE TRIBUNAL FO R A FRESH DECISION. HENCE THIS JUDGEMENT IS ALSO NOT RENDERING ANY HELP TO ASSESSEE 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 TO ASSESSEE IN THE PRESENT CASE. IN FACT AS PER THE JUDGEMENT OF HON'BLE KARNATAKA HIGH COURT, THE ISSUE IS COVERED AGAINST THE ASSESS EE BECAUSE IN THIS CASE, IT WAS HELD BY HON'BLE KARNATAKA HIGH COURT T HAT THE TRIBUNAL CANNOT GO BEYOND THE PROVISIONS OF SECTION 254(2) O F IT ACT AND CONDONE THE DELAY IN FILING THE M.P. HENCE BY RESP ECTFULLY FOLLOWING THIS JUDGEMENT OF HON'BLE KARNATAKA HIGH COURT, WE HOLD THAT THE PRESENT M.P. FILED BY THE ASSESSEE IS TIME BARRED A ND THE SAME IS NOT ADMISSIBLE. . MP.374/BANG/2018 PAGE - 8 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 D ECIDE THE SAME, IT HAS NO MERIT BECAUSE IN THE M. P., NO REASONING IS GIVEN ABOUT NON APPEARANCE OF THE ASSESSEE OR HIS AR ON THE APPOINT ED DATE OF HEARING TO ARGUE THE APPEAL. 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 ASSESSEE COMPANY APPEARED T O FILE AN APPLICATION FOR ADJOURNMENT BUT THE SAME WAS DENIED BY THE TRIBUNAL AND THE APPEAL WAS HEARD EX PARTE. THIS IS TO BE NO TED THAT THIS IS M. P. IS DRAFTED AND FILED VERY CASUALLY. THE DATE OF HEA RING AS PER THE TRIBUNAL ORDER WAS 22.11.2016 BUT THE ASSESSEE SAYS IN THE M. P. THAT IT WAS 22.11.2011. THIS APPEARS TO BE A TYPING MISTAKE BUT THE SAME SHOULD HAVE BEEN RECTIFIED BEFORE SIGNING AND FILIN G. GRANTING OF ADJOURNMENT ON REQUEST CANNOT BE TAKEN AS ASSURED. IN THE PARA 3 OF THE M. P., THE ASSESSEE SAYS THAT THE ASSESSEE COMP ANY HAD NOT DECIDED ON THE COUNSEL TO REPRESENT THEM AND HAD NOT FILED THE PAPER BOOK FOR HEARING. BOTH THESE CONTENTIONS ARE FACTUALLY INCOR RECT BECAUSE AS PER THE APPEAL FILE, IT IS SEEN THAT LETTER OF AUTHORIS ATION IS ALREADY AVAILABLE ON RECORD AS PER WHICH, THE ASSESSEE HAS AUTHORIZED SHRI K. R. PRADEEP, A CHARTERED ACCOUNTANT TO REPRESENT THE ASSESSEE AND THE SAME IS DULY ACCEPTED AND FILED BY THE SAID CHARTER ED ACCOUNTANT. A PAPER BOOK OF 143 PAGES IS ALSO AVAILABLE IN THE AP PEAL FILE. EVEN NON FINALIZATION OF COUNSEL AND NON FILING OF PAPER BOO K CANNOT BE CONSIDERED AS A REASONABLE CAUSE FOR NON APPEARANCE ON THE DATE OF HEARING. HENCE, THE REQUIREMENTS OF RULE 24 ARE ALS O NOT BEING SATISFIED IN THE PRESENT CASE. FOLLOWING THE DECISION OF THE COORDINATE BENCH, WE DO NOT FIND ANY MERIT IN THE MP FILED BY THE ASSESSEE, BEING TIME B ARRED. 05. IN THE RESULT, MP FILED BY THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH DAY OF MARCH, 2019. SD/- SD/- (A. K. GARODIA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBE R BENGALURU DATED : 29.03.2019 MCN* MP.374/BANG/2018 PAGE - 9 COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, BANGALORE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRI BUNAL, BANGALORE.