Feelings Multimedia Ltd., Vadodara V. The Income Tax Officer, Ward-1(2), Baroda

MA 4/AHD/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9169 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 27-01-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S SHUKLA
• Assessee Lawyers: MANESH MEHTA
• Keywords: Reasonable cause; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD (THROUGH VIRTUAL COURT) BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER M.A. NO.04/AHD/2021 (IN ITA NO. 2865/AHD/2015) (ASSESSMENT YEAR: 2011-12) FEELINGS MULTIMEDIA LTD. 102/103/104 PECIFIC PLAZA, VIP ROAD, KARELIBAUG, VADODARA, GUJARAT-390018 VS. ITO WARD-1(2), BARODA [PAN NO. AABCF2694K] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI MANESH MEHTA, C.A. RESPONDENT BY : SHRI S. S. SHUKLA, SR. D.R. DATE OF HEARING 19/03/2021 DATE OF PRONOUNCEMENT 22/03/2021 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE ASSESSEE SEEKING TO RECALL THE ORDER DATED 08.01.2016 PASSED IN ITA NO. 2865/AHD/2015 FOR A.Y. 2011-12 WHEREBY AND WHEREUNDER THE APPEAL STOOD DIS MISSED FOR DEFAULT SINCE NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE TIME OF CALL ON 04.01.2016 BEFORE THE LD. TRIBUNAL. 2. THE ASSESSEE FAITHFULLY STATED THE FACT THAT THE ASSESSEE HAD REQUESTED FOR ADJOURNMENT OF HEARING BY RPAD DATED 02.01.2016 AND RPAD DATED 01.04.2016 AND THE ASSESSEE WAS UNDER THE GENUINE IMPRESSION T HAT THE MATTER DID NOT COME UP FOR HEARING BEFORE THE TRIBUNAL AND THE SAME WAS KE PT PENDING. HOWEVER, ONLY ON 29.12.2020 THE ASSESSEE COULD COME TO KNOW FROM THE OFFICE OF THE INCOME TAX - 2 - MA N O.04/AHD/2021(IN ITA NO.2865/A/15) FEELINGS MULTIMEDIA LTD. VS. ITO ASST.YEAR 2011-12 OFFICER THAT THE MATTER WAS DISMISSED BY THE HONBL E TRIBUNAL ON 08.01.2016. IMMEDIATELY THEREAFTER THE INSTANT APPLICATION HAS BEEN FILED BEFORE US FOR RECALLING OF THE SAID ORDER OF DISMISSAL. 3. AT TIME OF HEARING OF THE MATTER IT WAS SUBMITTE D BY THE LD. COUNSEL APPEARING FOR THE ASSESSEE THAT THERE WAS NO INTENT IONAL LACHES ON THE PART OF THE ASSESSEE IN PURSUING THE MATTER IN THE TRIBUNAL. 4. HOWEVER, WE FIND THERE IS DELAY OF 1665 DAYS IN FILING THE INSTANT APPLICATION FOR RESTORATION OF THE APPEAL. IN SUPPORT OF THE D ELAY THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT WHEN THE APPLICATION FO R OPTING THE VIVAD SE VISHWAS SCHEME(VSVS) BY WAY OF FILING FORM NO. 1 GOT DISMI SSED ON THE PREMISE THAT THE APPEAL PREFERRED BEFORE THE LD. TRIBUNAL BY THE APP ELLANT IS NOT PENDING BUT STOOD DISMISSED ON 08.01.2016, FOR THE FIRST TIME THE FAC T OF DISMISSAL OF THE APPEAL CAME TO THE KNOWLEDGE OF THE ASSESSEE. AGAINST THE ORDE R OF DISMISSAL OF APPEAL BY DEFAULT MADE BY THE LD. TRIBUNAL APPLYING THE JUDGM ENT PASSED IN THE MATTER OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT (1997) 223 ITR 480 (M.P.) AND THAT OF IN CIT VS. MULTIPLAN INDIA (PVT.) LTD., 38 ITD 320 (DE LHI), THE LD. AR RELIED UPON THE JUDGMENT PASSED BY THE JURISDICTIONAL HIGH COUR T IN THE CASE OF DOLPHIN METAL (INDIA) LTD. VS. ITO WHEREBY AND WHEREUNDER THE HON BLE COURT ON IDENTICAL SITUATION HAS BEEN PLEASED TO QUASH THE ORDER PASSE D BY THE LD. TRIBUNAL IN DISMISSING THE APPEAL FOR NON-PROSECUTION WITH A DI RECTION UPON THE LD. TRIBUNAL TO FIX THE MATTER FOR HEARING. HE, THEREFORE, PRAYS F OR CONDONATION OF DELAY IN PREFERRING THE APPEAL BEFORE US AND ALSO RESTORATIO N OF THE SAID APPEAL. - 3 - MA N O.04/AHD/2021(IN ITA NO.2865/A/15) FEELINGS MULTIMEDIA LTD. VS. ITO ASST.YEAR 2011-12 5. ON THE OTHER HAND, THE LD. DR RELIED UPON THE OR DER PASSED BY THE LD. TRIBUNAL IN DISMISSING THE MATTER FOR DEFAULT. 6. HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AV AILABLE ON RECORD. THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE LD. TRIBUNAL O N 08.01.2016 AS NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE DATE OF H EARING. THE ASSESSEE HAS EXPLAINED THE REASON FOR NOT BEING ABLE TO APPEAR B EFORE THE TRIBUNAL ON THE DATE OF HEARING AS MENTIONED ABOVE AND ALSO FOR NOT FILING THE MISCELLANEOUS APPLICATION WITHIN THE PRESCRIBED TIME SUPPORTED BY AN AFFIDAVI T AND COPIES OF OTHER DOCUMENTS/DETAILS. IN FACT THE DOCUMENTS FILED BEF ORE THE DEPARTMENT FOR AVAILING THE VIVAD SE VISHWAS SCHEME AND THE ORDER OF REJECT ION WITH REASONS FOR THE MATTER NOT HAVING BEING PENDING BEFORE THE TRIBUNAL RATHER STOOD DISMISSED IS ACCORDING TO US, SUFFICIENT ENOUGH FOR NOT GETTING THE APPLICATION FOR RESTORATION OF THE MATTER FILED BEFORE US IN TIME. FROM THE SAID FACT, IT APPEARS THAT THERE WAS REASONABLE CAUSE BOTH FOR NON-APPEARANCE AND DELAY IN FILING THE MISCELLANEOUS APPLICATION AGAINST EX-PARTE ORDER PASSED ON ACCOUN T OF NON-PROSECUTION. IN OUR CONSIDERED OPINION SUFFICIENT CAUSE AS AP PEARING IN THE LIMITATION ACT SHOULD BE LIBERALLY CONSIDERED AND THE TRIBUNAL CANNOT SHUT THE DOOR OF JUSTICE TO A LITIGANT ON THE SCORE OF LIMITATION. WHEN THE REASON OF DELAY HAS BEEN PROPERLY EXPLAINED, THE TRIBUNAL IS TO ADOPT A PRAGMATIC APP ROACH TO CONDONE THE DELAY WHEN THERE IS NO NEGLIGENCE, INACTION OR WANT OF BO NA FIDE ON THE PART OF THE APPLICANT. THEREFORE, KEEPING IN VIEW OF RULE 24 O F THE (INCOME TAX APPELLATE TRIBUNAL, RULE1963), THE DECISION OF HON'BLE JURISD ICTIONAL HIGH COURT CITED IN THE CASE OF DOLPHIN METAL (INDIA) LTD. VS. ITO SUPRA, A ND THE LARGER INTEREST OF THE ASSESSEE SEEKING TO AVAIL THE ONGOING VIVAD SE VISH WAS SCHEME, 2020, WE FIND - 4 - MA N O.04/AHD/2021(IN ITA NO.2865/A/15) FEELINGS MULTIMEDIA LTD. VS. ITO ASST.YEAR 2011-12 THAT CONDONATION OF DELAY OTHERWISE WOULD NOT PREJU DICE THE INTEREST OF THE REVENUE IN ANY MANNER RATHER WOULD DO SUBSTANTIAL J USTICE TO THE PARTIES. THUS, WE CONDONE THE DELAY IN FILING THE MISCELLAN EOUS APPLICATION. CONSIDERING THE ABOVE FACTS AND FINDINGS, THE MISCE LLANEOUS APPLICATION IS ALSO ALLOWED. THE REGISTRY IS DIRECTED TO TAKE THE MATT ER ON BOARD ON 10.05.2021 FOR HEARING. 7. IN THE RESULT, MISC. APPLICATION FILED BY THE AS SESSEE IS ALLOWED . THIS ORDER PRONOUNCED IN OPEN COURT ON 22/03/2021 SD/- SD/- (AMARJIT SINGH) (MS. MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 22/03/2021 TANMAY, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A). 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 19/03/2021. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 19/03/2021 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S /03/2021 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S /03/2021 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 22/03/2021 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER