M/s. Curam Software International private Limited, Bangalore V. Income Tax Officer, Ward-2(1)(2), Bangalore

MA 387/BANG/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2733 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 24-12-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER A ND SHRI LALIET KUMAR, JUDICIAL MEMBER M.P. NO. 387/BANG/2018 (IN IT (TP) A NO . 192 /BANG/201 7 ) ASSESSMENT YEAR : 20 1 2 - 1 3 M/S. CURAM SOFTWARE INTERNATIONAL PRIVATE LIMITED, C/O IBM INDIA PRIVATE LIMITED, #12, BANNERGHATTA ROAD, SUBRAMANYA ARCADE 1, 3 RD FLOOR, BANGALORE 560 029. PAN: AACCC5472 F VS. THE INCOME-TAX OFFICER, WARD 2 (1) (2), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI NAGESWAR RAO, ADVOCATE RESPONDENT BY : SHRI R.N. SIDDAPPAJI, ADDL. CIT (DR) DATE OF HEARING : 08 .0 2 .2019 DATE OF PRONOUNCEMENT : 22 . 0 2 .201 9 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS M.P. IS FILED BY THE ASSESSEE ON 24.12.2018 ST ATING THAT THERE ARE CERTAIN APPARENT MISTAKES IN THE TRIBUNAL ORDER DATED 07.06 .2017. THE REGISTRY HAS ISSUED A DEFECT MEMO TO THE ASSESSEE POINTING OUT T HAT THIS M.P. IS TIME BARRED BY 362 DAYS. 2. IN COURSE OF HEARING OF THE M.P., IT WAS SUBMITT ED BY LD. COUNSEL OF THE ASSESSEE THAT THIS M.P. IS FILED BY THE ASSESSEE AS PER THE DIRECTIONS OF HON'BLE KARNATAKA HIGH COURT IN ITA NO. 775/2017 DA TED 02.07.2018. HE SUBMITTED A COPY OF THIS JUDGEMENT OF HON'BLE KARNA TAKA HIGH COURT AND DRAWN OUR ATTENTION TO PARA NOS. 3 AND 4 OF THIS JU DGEMENT. THESE PARAS FROM THIS JUDGMENT OF HON'BLE KARNATAKA HIGH COURT ARE REPRODUCED HEREINBELOW FOR READY REFERENCE. 3. HOWEVER, WE ARE OF THE OPINION THAT IF THERE IS ANY FACTUAL ERROR IN THE ORDER OF THE LEARNED TRIBUNAL AND THE STATEMENT AND THE ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT-ASSESSEE H AS BEEN WRONGLY NOTED BY THE LEARNED TRIBUNAL, IT IS OPEN TO THE AP PELLANT-ASSESSEE TO M.P. NO. 387/BANG/2018 (IN IT(TP)A NO. 192/BANG/2017) PAGE 2 OF 6 MOVE THE LEARNED TRIBUNAL ITSELF BY WAY OF MISCELLA NEOUS APPLICATION SEEKING ANY SUCH CORRECTION IN THE ORDER. 4. WITH THE AFORESAID LIBERTY TO THE APPELLANT-ASSE SSEE, WE DISPOSE OF THE PRESENT APPEAL AT THIS STAGE. THE LEARNED TRIB UNAL IS EXPECTED TO CONSIDER THE MISCELLANEOUS APPLICATION OF THE APPEL LANT-ASSESSEE IN ACCORDANCE WITH LAW. NO COSTS. 3. AFTER POINTING OUT THESE PARAS OF THIS JUDGEMENT OF HON'BLE KARNATAKA HIGH COURT, IT WAS SUBMITTED BY LD. COUNSEL OF THE ASSES SEE THAT SINCE PRESENT M.P. IS FILED BY THE ASSESSEE AS PER THE DIRECTIONS OF HON'BLE KARNATAKA HIGH COURT, IT CANNOT BE SAID THAT THE M.P. IS TIME BARRED AND HENCE, THE M.P. SHOULD BE CONSIDERED AND DECIDED. AS AGAINST THIS, THE LD. DR OF REVENUE SUBMITTED THAT THERE IS NO DIRECTION OF HON 'BLE KARNATAKA HIGH COURT IN RESPECT OF CONDONATION OF DELAY IN FILING OF M.P. BEFORE THE TRIBUNAL AND THE DIRECTION OF HONBLE HIGH COURT IS THIS MUC H ONLY THAT THE TRIBUNAL IS EXPECTED TO CONSIDER THE M.P. OF THE ASSESSEE IN AC CORDANCE WITH LAW. HE SUBMITTED THAT THE M. P. CAN BE CONSIDERED ONLY IF IT IS FILED IN TIME. HE FURTHER SUBMITTED THAT SINCE THE M.P. IS DELAYED, T HE M.P. CANNOT BE ADMITTED AND DECIDED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL, WE REPRODUCE THE RELEVANT PARAS FROM PAGE NO. 2 OF THE PRESENT M.P. FILED BY THE ASSESSEE BECAUSE IN THESE PARAS, THE ASSESSEE HAS POINTED OU T REGARDING AN EARLIER M.P. FILED BY THE ASSESSEE AGAINST THE SAME TRIBUNA L ORDER DATED 07.06.2017 WHICH HAS BEEN DISMISSED BY THE TRIBUNAL AS PER M.P. NO. 181/BANG/2017 DATED 25.10.2017. THESE PARAS ARE AS UNDER. AGGRIEVED BY FINAL ASSESSMENT ORDER, PETITIONER FIL ED AN APPEAL BEFORE HON'BLE TRIBUNAL. HON'BLE TRIBUNAL VIDE ORDE R DATED 07.06.2017 REJECTED CONTENTIONS OF PETITIONER AND D ISMISSED THE APPEAL ON GROUNDS THAT SUBMISSIONS MADE BEFORE IT B Y PETITIONER WERE NEVER PUT FORTH BEFORE LOWER AUTHORITIES AND THE SA ME WERE BEING SUBMITTED FOR THE FIRST TIME BEFORE HON'BLE TRIBUNA L. COPY OF HON'BLE TRIBUNAL'S ORDER IS ATTACHED HEREWITH AS ANNEXURE ' A'. ON 05.07.2017. PETITIONER FILED A MISCELLANEOUS PET ITION, BEING MISCELLANEOUS PETITION NO. 181/BANG/2017, AGAINST O RDER DATED 07.06.2017 FOR CORRECTION OF MISTAKES APPARENT FROM RECORD. PETITIONER, BY REFERRING TO RELEVANT ORDERS OF LOWE R AUTHORITIES AND SUBMISSIONS MADE BEFORE THEM, EXPLAINED ITS CONTENT IONS MADE DURING M.P. NO. 387/BANG/2018 (IN IT(TP)A NO. 192/BANG/2017) PAGE 3 OF 6 THE APPEAL HEARING AND SUBMITTED HOW HON'BLE TRIBUN AL'S ORDER DATED 07.06.2017 MISSED IN APPRECIATING COMPLETE FACTS. WHILE MISCELLANEOUS PETITION NO. 181/BANG/2017 WAS PENDING FOR DISPOSAL BEFORE HON'BLE TRIBUNAL, PETITIONER FILED AN APPEAL. BEING ITA NO. 775/2017, AGAINST THE IMPUGNED ORDER BEFORE HONBLE HIGH COURT OF KARNATAKA ('HON'BLE HIGH COURT'), DISPUTIN G THE FINDINGS OF HON'BLE TRIBUNAL ON VARIOUS ISSUES. HON'BLE TRIBUNAL, VIDE ORDER DATED 25.10.2017 PASSE D IN MISCELLANEOUS PETITION NO. 181/BANG/2017, DISMISSED THE CONTENTIONS OF PETITIONER AND STATED THAT ITS FINDINGS IN IMPUG NED ORDER HAVE BEEN GIVEN AFTER CONSIDERING ALL MATERIAL AND PLEADINGS BEFORE IT. COPY OF ORDER DATED 25.10.2017 PASSED BY HON'BLE TRIBUNAL I S ATTACHED HEREWITH AS ANNEXURE 'B'. 5. THE JUDGMENT OF HON'BLE KARNATAKA HIGH COURT IS RENDERED ON 02.07.2018 I.E. MUCH AFTER THE DISMISSAL OF THE FIR ST M.P. BY THE TRIBUNAL ON 25.10.2017. IT IS ALSO SEEN THAT IN THIS JUDGMEN T OF HON'BLE KARNATAKA HIGH COURT, THERE IS NO REFERENCE TO THIS ORDER OF TRIBUNAL DISMISSING THE M.P. IN M.P. NO. 181/BANG/2017 DATED 25.10.2017 AND IT MAY BE PERTINENT TO MENTION THAT THE ORDER OF THE TRIBUNAL DATED 25.10.2017 WAS PASSED BY THE SAME COMBINATION OF THE JUDICIAL MEMB ER AND ACCOUNTANT MEMBER WHO HAD EARLIER PASSED THE IMPUGNED TRIBUNAL ORDER BEFORE THE JUDGMENT OF HON'BLE KARNATAKA HIGH COURT. IN VIEW OF THE ABOVE, WE ARE OF THE CONSIDERED OPINION THAT IN THE ABSENCE OF A SPECIFIC DIRECTION FROM THE HON'BLE KARNATAKA HIGH COURT REGARDING CONDONAT ION OF THE DELAY IN FILING THE M.P. BEFORE THE TRIBUNAL, THIS M. P. CAN NOT BE ADMITTED. THERE IS ONE MORE REASON FOR WHICH, THIS M. P. IS NOT ADM ISSIBLE. THIS REASON IS THIS THAT SIMILAR M. P. IS ALREADY DISMISSED BY THE TRIBUNAL AND THAT TRIBUNAL ORDER IS NOT SET ASIDE BY HONBLE HIGH COU RT. HENCE, IF ANOTHER M. P. IS ADMITTED AND DECIDED, IT WILL AMOUNT TO RE VIEW OF THE EARLIER ORDER OF TRIBUNAL IN M. P. THE TRIBUNAL CANNOT REVIEW ITS OWN ORDER. FOR THIS REASON ALSO, THIS M. P. IS NOT ADMISSIBLE. IT APPEA RS THAT THE TRIBUNAL ORDER DATED 25.10.2017 IN M. P. NO. 181/BANG/2017 W AS NOT BROUGHT TO THE NOTICE OF HONBLE HIGH COURT. 6. AS THE ASSESSEE HAD ALREADY FILED ONE M.P. ON TH E SAME FACTS ALLEGING THE SAME MISTAKES AND IT WAS DISMISSED BY THE TRIBUNAL, WE FEEL THAT IN VIEW OF M.P. NO. 387/BANG/2018 (IN IT(TP)A NO. 192/BANG/2017) PAGE 4 OF 6 THE EARLIER ADJUDICATION BY THE TRIBUNAL OF THE SAM E GRIEVANCE IN THE M.P, THE ASSESSEE IS REQUIRED TO SEEK CLARIFICATION FROM THE HON'BLE KARNATAKA HIGH COURT AS TO WHETHER IN THE SUBSISTENCE OF THE EARLI ER M.P. ORDER, SECOND M.P. CAN BE ENTERTAINED BY THE TRIBUNAL ON THE SAME FACT S OR MISTAKES OR NOT. 7. THE FIRST M.P. WAS FILED WITHIN THE PERIOD OF SI X MONTHS PROVIDED U/S. 254(2) OF THE ACT AND HENCE, THE SAME WAS DECIDED BY THE T RIBUNAL. THE PRESENT SECOND M.P. NOW FILED BY THE ASSESSEE PURSUANT TO THE DIRE CTION OF HON'BLE KARNATAKA HIGH COURT IS BEYOND THE PERIOD OF SIX MONTHS AND A S PER THE REPORT OF THE REGISTRY, THE ASSESSEE HAS FILED THE M.P. WITH A DE LAY OF 362 DAYS. IN THE JUDGMENT OF HONBLE HIGH COURT AS REPRODUCED ABOVE, THIS IS NOT A DIRECTION THAT THE TRIBUNAL SHOULD CONSIDER AND DECIDE THE M. P. B Y IGNORING THE DELAY. THE DIRECTION IS THIS MUCH ONLY:- THE LEARNED TRIBUNAL IS EXPECTED TO CONSIDER THE MI SCELLANEOUS APPLICATION OF THE APPELLANT-ASSESSEE IN ACCORDANCE WITH LAW. 8. SINCE HONBLE HIGH COURT HAS DIRECTED US TO CONS IDER THE M. P. IN ACCORDANCE WITH LAW, THE LAW WITH REGARD TO LIMITAT ION IS ALSO TO BE CONSIDERED IN OUR HUMBLE OPINION. IN OUR HUMBLE OPINION, A CLARIF ICATION IS REQUIRED TO BE TAKEN BY THE ASSESSEE FROM HON'BLE KARNATAKA HIGH COURT I N RESPECT OF CONDONATION OF DELAY AND IF HON'BLE KARNATAKA HIGH COURT GRANTS P ERMISSION TO THE ASSESSEE TO FILE THE SECOND M.P. BEFORE THE TRIBUNAL BELATEDLY AND IF IT IS PERMITTED BY THE HONBLE HIGH COURT TO THE ASSESSEE TO FILE A FRESH M. P. BELATEDLY ON THE SAME FACTS THEN IN THAT EVENTUALITY, DIRECTION IS REQUIR ED FROM HONBLE HIGH COURT FOR CONDONING THE DELAY IN FILING THE M.P. AS WELL AS ABOUT THE FATE OF THE FIRST M. P. ORDER. REGARDING THE LAW LAID DOWN BY HON'BLE KARNA TAKA HIGH COURT IN RESPECT OF CONDONATION OF DELAY IN FILING OF M.P., WE CONSIDER THE JUDGMENT OF HON'BLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF SRI MU NINAGA REDDY VS. ACIT IN W.P. NO. 25553/2018 (T-IT) DATED 12.07.2018 (KARNAT AKA) AND PARA NOS. 9 AND 10 OF THIS JUDGMENT ARE REPRODUCED 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 TRIBUN AL 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 M.P. NO. 387/BANG/2018 (IN IT(TP)A NO. 192/BANG/2017) PAGE 5 OF 6 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 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 CONDON E THE DELAY AS HELD BY THE DIVISION BENCH OF THIS COURT IN THE CAS E 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 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. M.P. NO. 387/BANG/2018 (IN IT(TP)A NO. 192/BANG/2017) PAGE 6 OF 6 9. FROM THE ABOVE PARAS REPRODUCED FROM THIS JUDGME NT OF HON'BLE KARNATAKA HIGH COURT, IT IS SEEN THAT HON'BLE KARNA TAKA HIGH COURT IN THIS CASE HELD THAT UNDER THE PROVISIONS OF SECTION 254, THE TRIBUNAL CANNOT GO BEYOND THE PROVISIONS OF THE SAID SECTION AND HELD THAT THE TR IBUNAL CANNOT CONDONE THE DELAY OF MORE THAN SIX MONTHS. BUT IT WAS HELD THA T BY EXERCISING THE POWER UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF I NDIA, HONBLE HIGH COURT CAN CONDONE THE DELAY AND ACCORDINGLY HON'BLE KARNATAKA HIGH COURT IN THAT CASE ALLOWED THE WRIT PETITION HOLDING THAT THE PETITION ER FALLS UNDER EXCEPTIONAL CATEGORY FOR EXERCISING POWER UNDER ARTICLES 226 AN D 227 OF THE CONSTITUTION OF INDIA. IN VIEW OF THIS JUDGEMENT OF HON'BLE KARNAT AKA HIGH COURT, THE TRIBUNAL CANNOT ENTERTAIN A M.P. OF THE ASSESSEE FILED BEYON D THE TIME LIMIT PERMITTED U/S. 254(2) OF IT ACT UNLESS SPECIFIC CONDONATION OF DEL AY IS GRANTED BY HON'BLE KARNATAKA HIGH COURT. IN VIEW OF THE ABOVE, APPLIC ATION OF THE ASSESSEE IS DISMISSED. HOWEVER, LIBERTY IS GRANTED TO THE ASSES SEE TO SEEK REVIVAL OF THE ORDER OF M.P. IF THE ASSESSEE OBTAINS A CLARIFICATI ON FROM HONBLE HIGH COURT AS MENTIONED ABOVE ON BOTH ASPECTS. 6. IN THE RESULT, THE M.P. FILED BY THE ASSESSEE IS 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 22 ND FEBRUARY, 2019. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.