DIT(E), Hyderabad V. A.P.Endowments Archakas & Others Employees Welfare Fund, Hyderabad

MA 38/HYD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0831 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-09-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 07-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER MA NO.37 & 38/HYD/2013 ARISING OUT OF ITA NO 1993 & 1994/HYD/2011 ASSESSMENT YEARS 2004-05 & 2005-2006 DIRECTOR OF INCOME TAX (EXEMPTIONS)-1, HYDERABAD. VS. A.P.ENDOWMENTS ARCHAKAS AND OTHER EMPLOYEES WELFARE FUND TRUST, HYDERABAD PAN AABTA6286F (APPLICANT) (RESPONDENT) FOR APPLICANT : SMT. T.H.VIJAY LAKSHMI (D.R.) FOR RESPONDENT : SHRI P.MURALIMOHAN RAO (A.R.) DATE OF HEARING : 23.08.2013 DATE OF PRONOUNCEMENT : 13.09.2013 ORDER PER SMT. ASHA VIJAYARAGHAVAN, J.M. BY THESE MISCELLANEOUS APPLICATIONS, THE DEPARTMENT HAS POINTED OUT THAT CERTAIN ERRORS HAVE CREPT IN THE ORDER OF TRIBUNAL IN ITA. NO. 1993 & 1994/HYD/2011 DATED 06.06.2012. 2. THE DEPARTMENT HAS POINTED OUT IN THE M.A. AS FO LLOWS : 2. FROM THE COPIES OF FORM NO.36, FILED BY THE AS SESSEE FOR BOTH THE ASSESSMENT YEARS, AS OBTAINED, IT IS N OTICED THAT THE SAID ORDER DATED 04.12.2006 OF THE DIRECTO R OF INCOME TAX (EXEMPTIONS), HYDERABAD, NOT CONDONING DELAY OF 6 YEARS, 11 MONTHS AND 6 DAYS, AND GRANTING REGISTRATION U/S.12AA OF THE ACT, W.E.F. 1.4.2006, WAS RECEIVED BY THE ASSESSEE ON 14.12.2006. THE SAME IS MENTIONED IN COL NO.9 OF THAT APPEAL MEMO IN FORM N O.36, 2 M.A.NO.37 & 38/HYD/2013 A.P. ENDOWMENTS ARCHAKAS AND OTHER EMPLOYEES WELFARE FUND TRUST, HYDERABAD FILED BY THE ASSESSEE. IN VIEW OF THIS FACT, APPEAL , AGAINST THE SAID ORDER OF THE DIT(EXEMPTIONS), OUGHT TO HAV E BEEN FILED BEFORE THE HON'BLE ITAT, AS PER THE PROVISION S OF SECTION 253(3) OF THE ACT, WITHIN 60 DAYS OF THE DA TE OF RECEIPT OF SUCH ORDER OF THE DIT(E), BY THE ASSESSE E I.E., BY 12 TH FEBRUARY, 2007, IN THIS CASE. HOWEVER, IT IS NOTIC ED THAT THE SAID APPEALS PERTAINING TO ASST YEARS 2004 -05 AND 2005-06, HAVE BEEN FILED BY THE ASSESSEE ON 05.12.2011. THE SAME IS EVIDENT FROM THE DATE MENTI ONED IN INK ON THE RIGHT HAND TOP CORNER OF SUCH FORM NO .36. THUS, IT IS SEEN THAT THERE WAS UNDUE AND INORDINAT E DELAY IN FILING, OF SUCH APPEALS BY THE ASSESSEE. I T IS FURTHER NOTICED THAT THE HON'BLE ITAT, WITHOUT ADDR ESSING SUCH ISSUE OF INORDINATE DELAY IN FILING THE APPEAL , HAS ENTERTAINED SUCH APPEALS OF THE ASSESSEE AND DECIDE D THE SAME ON MERITS, WHICH IS AN ERROR APPARENT ON RECOR D. 3. IT MAY BE MENTIONED HERE THAT THE HON'BLE JURISDICTIONAL ITAT, IN THEIR EARLIER DECISION IN T HE CASE OF MAHENDRA FINANCE CORPORATION VS. ITO( 1989)( 29 ITD , 302), HELD THAT UNLESS THE DELAY IS CONDONED, THE C OURT OR THE TRIBUNAL SHALL NOT BE LEGALLY EMPOWERED TO HEAR AN APPEAL. IN THIS CONTEXT, IT IS PERTINENT TO REPRODU CE THE FOLLOWING OBSERVATION MADE BY THE HON'BLE ITAT IN T HAT DECISION 14. AS IS WELL KNOWN, A TIME BARRED APPEAL, SUIT OR PETITION STRIKES AT THE VERY ROOT OF THE JURISDICTION OF THE COURT OR TRIBUNAL FROM WHICH ITS HEARING IS SOUGHT. TILL SUCH TIME THE DELAY IS CONDONED, THE COURT OR THE TRIBUNAL SHALL NOT BE CLOTHED WITH THE LEGAL AUTHORITY TO HEAR IT. 3 M.A.NO.37 & 38/HYD/2013 A.P. ENDOWMENTS ARCHAKAS AND OTHER EMPLOYEES WELFARE FUND TRUST, HYDERABAD 3.1. FURTHER, REFERRING TO THE JUDGEMENT OF HON'B LE SUPREME COURT IN THE CASE OF KIRAN SINGH V. CHAMAN PASWAN AIR 1954 SC 340, THE HON'BLE ITAT NOTED IN THAT DECISION, THAT WHERE THERE IS LACK OF JURISDICTION, EVEN ON GROUND OF LIMITATION, THE COURT OR TRIBUNAL IS PREC LUDED FROM HEARING APPEAL TILL SUCH TIME THE DELAY IS CON DONED. THE RELEVANT OBSERVATION MADE BY THE HON'BLE ITAT I N THIS REGARD, IN THAT DECISION, IS REPRODUCED AS UNDER: 17. FROM THE AFORESAID, IT IS THUS ABUNDANTLY CLEAR THAT WHEREIN THERE IS A LACK OF JURISDICTION TO THE CONSIDERATION OF A MATTER ON MERITS BECAUSE OF ANY REASON WHATSOEVER - MAY BE TERRITORIAL, PECUNIARY OR ON GROUNDS OF LIMITATION, THE COURT OR TRIBUNAL IS WHOLLY PRECLUDED FROM RENDERING ITS DECISION TILL SUCH TIME SUCH LEGAL, INABILITY IS OVERCOME. 4. IN VIEW OF THE FOREGOING DISCUSSIONS, AS THERE IS A MISTAKE APPARENT IN THE SAID ORDER OF THE HON'BLE I TAT IN ITA NOS.1993 AND 1994 /HYD/2011 FOR ASST YEARS 2004 - 05 AND 2005-06, DATED 06.06.2012, IT IS RESPECTFULL Y REQUESTED THAT THE HON'BLE ITAT MAY KINDLY RECALL T HEIR SAID ORDER DATED 06.06.2012 AND FURTHER TO DISMISS SUCH TIME BARRED APPEALS OF THE ASSES~ FOR THE SAID TWO ASSESSMENT YEARS I.E., 2004-05 AND 2005-06. 3. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI AL ON RECORD. AS CERTAIN MISTAKES HAVE CREPT IN OUR ORDER DATED 6 TH JUNE, 2012 IN ITA.NO.1993 & 1994/HYD/2011 FOR ASSESSMENT YEARS 20 04-005 AND 2005-2006, THE APPEALS HAS TO BE HEARD AFRESH. HENC E, WE RECALL OUR ORDER DATED 06.06.2012 IN ITA. NO. 1993 & 1994/HYD/ 2011 AND DIRECT 4 M.A.NO.37 & 38/HYD/2013 A.P. ENDOWMENTS ARCHAKAS AND OTHER EMPLOYEES WELFARE FUND TRUST, HYDERABAD THE REGISTRY TO POST THE APPEALS FOR HEARING ON 11. 12.2013. SINCE, THE DATE IS ANNOUNCED IN THE OPEN COURT, NO NOTICE WILL GO TO THE PARTIES. IT IS NEEDLESS TO MENTION THAT IN CASE, ANY PAPER BOOKS T O BE SERVED ON EITHER SIDE, THE PARTIES ARE DIRECTED TO DO THE SAME WELL IN ADVANCE AND NO ADJOURNMENT WOULD BE GRANTED TO EITHER PARTIES AT T HE TIME OF HEARING OF THE APPEALS ON 11.12.2013. 4. IN THE RESULT, MISCELLANEOUS APPLICATIONS OF THE DEPARTMENT ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT, ON 13.09.2013. SD/- SD/- (CHANDRA POOJARI) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATE 13 TH SEPTEMBER, 2013. VBP/- COPY TO 1. D IRECTOR OF INCOME TAX (EXEMPTIONS) - 1, HYDERABAD. 2. A.P.ENDOWMENTS ARCHAKAS AND OTHER EMPLOYEES WELF ARE FUND TRUST, C/O. P.MURALI & CO. C.AS. 6-3-655/2/3, 1 ST FLOOR, SOMAJIGUDA, HYDERABAD 32. PAN AABTA6286F 3. DIRECTOR OF INCOME TAX (EXEMPTIONS)-1, HYDERABAD . 4. DY. DIRECTOR OF INCOME TAX (EXEMPTIONS), HYDERAB AD. 5 . D.R. I.T.A.T. B BENCH, HYDERABAD