Paladugu Prabhakar, Hyderabad V. Dy. Commissioner of Income Tax, Central Circle - 2(2), Hyderabad, Hyderabad

MA 40/Hyd/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5998 (ITAT-HYDERABAD)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 06-07-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: V RAGHAVENDRA RAO
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B, HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER M.A. NO. 40/HYD/2017 (ARISING OUT OF ITA NO. 1536/HYD/2016) ASSESSMENT YEAR: 2005-06 PALADUGU PRABHAKAR, HYDERABAD [PAN: AGYPP0536C] VS DCIT, CENTRAL CIRCLE-2(2), HYDERABAD (APPLICANT) (RESPONDENT) FOR ASSESSEE : SHRI V. RAGHAVENDRA RAO, AR FOR REVENUE : SHRI A.G.V. PRASAD, DR DATE OF HEARING : 22-12-2017 DATE OF PRONOUNCEMENT : 29-12-2017 O R D E R PER D. MANMOHAN, VICE-PRESIDENT : BY THIS APPLICATION, ASSESSEE SEEKS RECALL OF THE O RDER DATED 12-05-2017 ON THE GROUND THAT BY VIRTUE OF MISTAKE COMMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, THE APPE AL WAS DISMISSED AS NOT PRESSED THOUGH THE FACT REMAINS THAT IN THE WRITTEN SUBMISSIONS, THE ASSESSEE MADE HIS SUBMISSIONS ON MERITS. 2. LD. COUNSEL FOR THE ASSESSEE FILED AN AFFIDAVIT STA TING THAT A MISTAKE WAS COMMITTED AT HIS END, BY ENDORSING ON THE G ROUNDS OF APPEAL FOR THE AY. 2005-06, THAT THE ASSESSEE IS NOT INTERESTED 2 M.A. NO. 40/HYD/2017 IN PRESSING THE APPEAL FOR THE AY. 2005-06 THOUGH THE FACT REMAINS THAT IN THE COMMON WRITTEN SUBMISSIONS FILED FOR THE AYS. 2005-06 TO 2007-08 ONLY THE LAST TWO YEARS ARE NOT PR ESSED. 3. AT THE OUTSET, IT MAY BE NOTICED THAT THE APPEAL IS BARR ED BY LIMITATION OF 19 DAYS AND WITHOUT ADMITTING THE APPEAL, THE MATTER CANNOT BE PROCEEDED WITH. SINCE THE APPEAL WAS DISMISS ED AS WITHDRAWN, THERE WAS NO OCCASION FOR THE TRIBUNAL TO GO INTO THAT ASPECT BUT AT THIS STAGE, THE AFFIDAVIT ALREADY FILED BY THE ASSESSEE CAN BE LOOKED INTO TO SEE AS TO WHETHER INTEREST OF JUSTI CE DEMAND RECALL OF THE ORDER PASSED BY THE TRIBUNAL. THE ORDER OF THE FIRST APPELLATE AUTHORITY WAS COMMUNICATED TO THE ASSESSEE ON 28-08- 2016 AS PER FORM 36, BUT THE APPEAL WAS FILED ONLY O N 15-11-2016 FOR WHICH THE TRIBUNAL HAS SENT A DEFECT MEMO TO SHRI PALADUGU PRABHAKAR. THE ASSESSEE-HEREIN FILED AN AFFIDAVIT WH EREIN IT WAS STATED THAT THE APPEAL WAS ACTUALLY FILED ON 25-11-2016 R ESULTING IN A DELAY OF 30 DAYS. THIS AFFIDAVIT WAS DULY VERI FIED ON 25-11-2016, A DATE WHICH FALLS AFTER THE DATE OF RECEI PT OF FORM 36 IN THE REGISTRY. IT COULD THUS BE SEEN THAT THE AFFIDAVI T WHICH IS SUPPOSED TO BE A STATEMENT OF FACT CONSISTS OF WRONG FAC TS. 4. IT WAS FURTHER STATED THAT HE HAS BEEN STAYING IN VIJAY AWADA FOR BUSINESS PURPOSES AND THE APPEAL PAPERS ARE PREP ARED BY ADVOCATE, WHO HAS FORWARDED THE PAPERS BY SPEED POST W HICH WERE RECEIVED BY HIS WIFE ON 30-10-2016, WHICH WERE SENT BACK TO THE AUTHORISED REPRESENTATIVE BY RETURN COURIER POST AFTER D ULY APPENDING HIS SIGNATURE. THEREAFTER, THE AUTHORISED REPRESENTATIVE HAD TAKEN ONE DAY TO CHECK THE APPEAL PAP ERS AND THEY WERE SENT THROUGH AN ARTICLE ASSISTANT TO THE REGIS TRY, WHO CLAIMS THAT THEY RETURNED, BY ORALLY STATING THAT THE APPE AL PAPERS 3 M.A. NO. 40/HYD/2017 MUST BE FILED ONLY WITH LETTERS OF CONDONATION OF DEL AY. HERE AGAIN THERE IS NO NAME OF PERSON IN THE REGISTRY, WHO HAS RE FUSED SO AS TO CROSS VERIFY. SINCE THE REGISTRY WAS GIVEN GENERAL INSTRUCTIONS NOT TO REFUSE ANY APPEAL PAPERS ON SUCH GROUNDS, BUT T O NOTE THEREIN THE DEFECTS, IT IS INTRIGUING AS TO WHO REFUSED T O TAKE THE APPEAL PAPERS IN THE REGISTRY. IN THE ABSENCE OF ANY AFFIDAVIT BY SHRI ATUL, ARTICLE ASSISTANT, IN THE WAKE OF SPECIFIC DIRECTIVES GIVEN BY THE REGISTRY, IT IS INCOMPREHENSIBLE AS TO HOW THE A PPEAL PAPERS WERE REJECTED. 5. IT WAS ALSO STATED THAT THE PREPARATION OF APPLICATION FOR CONDONATION, DISPATCH, SIGNATURES AND DISPATCH BACK W OULD HAVE INVOLVED IN MORE DELAY AND AS PER THE ADVICE OF THE ADVOCATE, THE APPEAL PAPERS WERE FORWARDED TO THE TRIBUNAL BY REGIS TERED POST ON 14-11-2016, WHICH WERE RECEIVED BY THE REGISTRY ON 15-11- 2016. IT WAS ALSO STATED THAT ANOTHER SET OF PAPERS WERE FILED SUBSEQUENTLY. 6. WHEN THE ORDER OF THE FIRST APPELLATE AUTHORITY WAS COMMUNICATED TO THE ASSESSEE ON 28-08-2016, THE LAST DATE FOR FILING THE APPEAL EXPIRES ON 28-10-2016. WHEN THE A PPEAL PAPERS WERE CLAIMED TO HAVE BEEN SENT BY POST FROM HYDERABAD TO VIJAYAWADA FOR THE SIGNATURE OF THE ASSESSEE, ORDINAR ILY, SPEED POST ONLY TAKES ONE OR TWO DAYS, WHEREAS THE ASSESSEE HAVING CLAIMED THAT IT TOOK FIVE DAYS, SOME EVIDENCE COULD HAV E BEEN FILED IN THAT REGARD BUT NO SUCH EVIDENCE WAS FILED, EXCEPT MAKING THE STATEMENT. IN FACT THE TAX EFFECT IN THIS APPEAL IS ALS O MARGINAL, APART FROM THE FACT THAT THE ASSESSEES COUNSEL MADE A STA TEMENT BEFORE THE HON'BLE COURT THAT THE ASSESSEE IS NOT PRESSI NG THE APPEAL AND UNDER THESE CIRCUMSTANCES, THE TRIBUNAL HA VING 4 M.A. NO. 40/HYD/2017 DISMISSED THE APPEAL, IT CANNOT BE SAID THAT THERE IS A MISTAKE APPARENT FROM RECORD IN THE ORDER PASSED BY THE TRIBUN AL. WE ARE, THEREFORE OF THE OPINION THAT IT IS NOT A FIT CASE FOR REC ALL OF THE ORDER DATED 12-05-2017. WE THEREFORE DISMISS THE MIS CELLANEOUS APPLICATION. 7. IN THE RESULT, MISCELLANEOUS APPLICATION IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH DECEMBER, 2017 SD/- SD/- (S. RIFAUR RAHMAN) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT HYDERABAD, DATED 29 TH DECEMBER, 2017 TNMM 5 M.A. NO. 40/HYD/2017 COPY TO : 1. PALADUGU PRABHAKAR, FLAT NO. 506, M.S.R. LEGEND, UPSTAIRS TO SBI, PENAMALURU CENTRE, VIJAYAWADA. 2. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2 (2), HYDERABAD. 3. CIT (APPEALS)-12, HYDERABAD. 4. PR.CIT(CENTRAL), HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.