Shri Harendra M Karia, GANDHIDHAM V. The Assistant Commissioner Of Income Tax, Gandhidham Circle, GANDHIDHAM

MA 40/RJT/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6481 (ITAT-RAJKOT)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-04-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 26-08-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAI RAJ KUMAR
• Keywords: Period of limitation; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) M.A. 40/RJT/2010 (ARISING OUT OF I.T.A. NO.1138/RJT/2009) (ASSESSMENT YEAR 2006-07) SHRI HARENDRA MOHANLAL KARIA VS THE ACIT, GANDHIDHA M CIRCLE PROP M/S LINK ENTERPRISE GANDHIDHAM PLOT 44, SECTOR 9/A GANDHIDHAM KUTCH PAN : ADEPK3463A (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI KALPESH DOSHI RESPONDENT BY: SHRI JAI RAJ KUMAR O R D E R PER N.R.S. GANESAN, JM THE ASSESSEE FILED THE MISCELLANEOUS APPLICATION O N THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THE TRIBUNAL DATED 10-0 6-2010. 2. SHRI KALPESH DOSHI, THE LEARNED REPRESENTATIVE F OR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD FILED A CROSS OBJECTION. HOW EVER, THERE WAS A DELAY OF 17 DAYS IN FILING THE CROSS OBJECTION. NO DEFECTIVE M EMO WAS BY THE REGISTRY. THE LEARNED REPRESENTATIVE SUBMITTED THAT THE ASSESSEE HAS FILED AN APPLICATION NOW TO CONDONE THE DELAY OF 17 DAYS. ACCORDING TO THE LEARNED REPRESENTATIVE, THE ASSESSEE WAS UNDERGOING TREATMENT. THEREFORE, HE C OULD NOT FILE THE CROSS OBJECTION WITHIN THE PERIOD OF LIMITATION. ON A QU ERY FROM THE BENCH WHETHER ANY APPLICATION FOR CONDONATION OF DELAY WAS FILED OR N OT AT THE TIME OF HEARING OF THE APPEAL, THE LEARNED REPRESENTATIVE FAIRLY SUBMITTED THAT NO APPLICATION FOR CONDONATION OF DELAY WAS FILED AND NOW ONLY AN AFFI DAVIT IS FILED ALONG WITH THE MISCELLANEOUS APPLICATION. REFERRING TO THE ORDER OF THE TRIBUNAL, MORE PARTICULARLY, AT PAGE 5, THE LEARNED REPRESENTATIVE SUBMITTED THAT THIS TRIBUNAL OBSERVED THAT THE CROSS OBJECTION WAS TIME BARRED B Y 176 DAYS AND THEREFORE, IT MA NO.40/RJT/2010 2 WAS DISMISSED. IN FACT THE DELAY WAS ONLY 17 DAYS AND NOT 176 DAYS. THEREFORE, THIS NEEDS TO BE RECTIFIED. 3. ON THE CONTRARY, SHRI JAI RAJ SINGH, THE LD.DR S UBMITTED THAT THERE IS NO ERROR IN THE ORDER OF THE TRIBUNAL WHICH NEEDS TO B E RECTIFIED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND HAVE ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTED LY, THERE WAS A DELAY IN FILING THE CROSS OBJECTION. THE ASSESSEE CLAIMS THAT THE DELAY IS ONLY OF 17 DAYS. HOWEVER, THE TRIBUNAL OBSERVED IN ITS ORDER THAT TH E DELAY WAS 176 DAYS. IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS NOT FILED ANY APPL ICATION TO CONDONE THE DELAY AT THE TIME OF FILING OF THE CROSS OBJECTION OR AT THE TIME OF HEARING OF THE CROSS OBJECTION. FOR THE FIRST TIME, THE ASSESSEE FILED THE AFFIDAVIT TO CONDONE THE DELAY ALONG WITH THE PRESENT MISCELLANEOUS APPLICATION. THE FACT REMAINS THAT THERE IS NO APPLICATION TO CONDONE THE DELAY BEFORE THIS TRI BUNAL WHEN THE APPEAL AND THE CROSS OBJECTION WERE HEARD AND DISPOSED OFF. THERE FORE, IN OUR OPINION, IT CANNOT BE SAID THAT THERE IS AN ERROR ON THE FACE OF THE R ECORD. THIS TRIBUNAL IS EMPOWERED TO RECTIFY THE ORDER U/S 254(2) ON THE BA SIS OF THE MATERIAL AVAILABLE ON RECORD. THIS TRIBUNAL CANNOT ENTERTAIN ANY NEW MATERIAL OR APPLICATION FOR THE PURPOSE OF RECTIFYING THE ERROR U/S 254(2) OF THE A CT. IN OTHER WORDS, THE APPLICATION / AFFIDAVIT FILED BY THE ASSESSEE FOR C ONDONATION OF DELAY IN A PROCEEDINGS U/S 254(2) OF THE ACT CANNOT BE ENTERTA INED AT THIS STAGE. NOW COMING TO THE NUMBERS OF DAYS OF DELAY, AS RIGHTLY POINTED OUT BY THE LEARNED REPRESENTATIVE FOR THE ASSESSEE, THE DELAY IS ONLY OF 17 DAYS AND NOT 176 DAYS. THEREFORE, TO THAT EXTENT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL. THEREFORE, IN OUR OPINION, THAT ERROR NEEDS TO BE RECTIFIED. ACCORDINGLY WE RECTIFY THE SAME AS UNDER: ON PAGE 5, AT PARAGRAPH 10 OF THE ORDER INSTEAD OF 176 DAYS, 17 DAYS SHALL BE INSERTED. AND AFTER RECTIFICATION, PARAGRAPH 10 OF THE ORDER WOULD READ AS FOLLOWS: MA NO.40/RJT/2010 3 10. THE CROSS OBJECTION IS TIME BARRED BY 17 DAYS AND THEREFORE, THE SAME IS DISMISSED. THE ORDER OF THE TRIBUNAL IS RECTIFIED TO THAT EXTE NT. THE OTHER PART OF THE ORDER SHALL REMAIN AS SUCH. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED PARTLY. ORDER PRONOUNCED IN THE OPEN COURT ON 13-05-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT, DT : 13 TH MAY, 2011 PK/- COPY TO: 1. APPLICANT 2. RESPONDENT 3. THE CIT(A)-IU, RAJKOT 4. THE CIT-I, RAJKOT 5. THE DR, I.T.A.T., RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT