Swetamber Steel Limited, Baroda V. The ACIT., Panchamahal Circle, Godhra

MA 400/AHD/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0645 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 1994-1995
• Appeal Filed On: 27-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Keywords: Opportunity of being heard; Period of limitation; Time period of passing order
• Section: 254(2); 13

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT) BEFORE SHRI AMARJIT SINH, ACCOUNTANT MEMBER AND MS. MADDHUMITA ROY, JUDICIAL MEMBER MA NO.400/AHD2019 IN ITA NO.2964/AHD/2013 / ASSTT.YEAR : 1994-95 SWETEMBER STEEL LTD B/6. VIHAR CINEMA PRATAPNAGAR ROAD BARODA 390 001 PAN : AACCS 5504 L VS. ACT, PANCHMAHAL CIRCLE GODHRA. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : SHRI MEHUL THAKKER, AR REVENUE BY : SHRI LALIT P. JAIN, SR.DR / DATE OF HEARING : 22/12/2020 / DATE OF PRONOUNCEMENT: 23/12/2020 !'/ O R D E R PER AMARJIT SINH, ACCOUNTANT MEMBER: BY WAY OF MISC. APPLICATION ASSESSEE SEEKS TO RECAL L ORDERS OF THE TRIBUNAL DATED 18.09.2017 PASSED IN ITA NO.2964 /AHD/2013, WHICH WAS DISMISSED EX PARTE FOR WANT OF PROSECUTION. 2. MISC. APPLICATION FILED BY THE ASSESSEE IS LATE BY 650 DAYS AS NOTED BY THE REGISTRY IN THE FILE. THE ASSESSEE HAS FILED AN APPLICATION SUPPORTED BY AN AFFIDAVIT EXPLAINING THE REASONS FO R THE DELAY IN FILING OF THE MA. THE RELEVANT PART OF THE APPLICATION RE ADS AS UNDER: 1. THE APPEAL FILED BY THE ASSESSEE-COMPANY ABOVE- NAMED FOR THE ASSESSMENT YEAR 1994-95 BEARING ITA NO. 2964/AHD/20 13 WAS DECIDED BY HONBLE ITAT, AHMEDABAD BENCH-A, AHMEDAB AD VIDE ORDER DATED 18-09-2017, WHEREBY THE APPEAL OF THE A SSESSEE- MA NO.400/AHD/2019 2 COMPANY WAS DISMISSED FOR NON PROSECUTION ON ACCOUN T OF NON APPEARANCE OF THE ASSESSEE. 2. THE REASON FOR NON APPEARANCE ON THE PART OF THE ASSESSEE- COMPANY WAS THAT NONE OF THE NOTICES OF HEARING WER E RECEIVED BY THE ASSESSEE DUE TO FACT THAT THE ASSESSEE-COMPANY HAD CLOSED DOWN ITS BUSINESS . OPERATIONS SINCE LONG AND NOW IT IS A DEFUNCT COMPANY. THE LAST EMPLOYEE CUM WATCHMAN OF THE ASSESSEE-COMP ANY HAD ALSO LEFT WITH EFFECT FROM 31-10-2016. IN THESE CIRCUMST ANCES, THE ABOVE APPEAL WAS HEARD AND DISMISSED WITHOUT ANY REPRESEN TATION FROM THE SIDE OF ASSESSEE-COMPANY. 3. THE ORDER OF THE HON'BLE ITAT WAS ALSO NOT RECEI VED ON ACCOUNT OF THE SAME FACTS NARRATED IN EARLIER PARA. ON ONLINE VERIFICATION OF THE ' CASE STATUS', IT WAS FOUND THAT THE APPEAL HAS BE EN DISMISSED ON ACCOUNT OF NON-REPRESENTATION. 4. ON BEING REQUESTED, THE DEPUTY REGISTRAR, ITAT A HMEDABAD HAS PROVIDED THE COPY OF ORDER OF HON'BLE ITAT ON 19/08 /2019. 5. ON RECEIPT OF THE COPY OF ORDER OF HON'BLE ITAT, THE ASSESSEE HAS FILED MA APPLICATION ON 27/12/2019 WHICH IS VERY WE LL WITHIN THE LIMITATION PERIOD OF SIX MONTHS FROM THE DATE OF RE CEIPT OF ORDER. 6. AS PER THE NOTING OF REGISTRY, THERE IS A DELAY OF 650 DAYS BECAUSE THE SAME HAS BEEN COMPUTED WITH REFERENCE TO THE DA TE OF PASSING OF ORDER BY THE HON'BLE ITAT. 7. OUR RESPECTFUL SUBMISSION IS THAT THE DELAY OBSE RVED BY THE REGISTRY IS ACADEMIC IN NATURE AND IT IS ARISING OU T OF THE INTERPRETATION OF SECTION 254(2) WHICH READS AS UND ER: '254(2): THE APPELLATE TRIBUNAL MAY, AT ANY TIME WI THIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED, WITH A VIEW TO RECTIFYING ANY MISTAKE APPAR ENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUBS ECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BRO UGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER. PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INC REASING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UN DER THIS SUB- SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOT ICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD.' MA NO.400/AHD/2019 3 8. ON BARE READING OF THE SUB-SECTION (2) OF SECTIO N 254, THE LEGAL ISSUE THAT MAY ARISE IS, WHETHER FOR THE PURPOSE OF FILING THE RECTIFICATION APPLICATION, PERIOD OF LIMITATION OF SIX MONTHS WOULD COMMENCE FROM THE DATE OF THE ORDER, WHICH IS SOUGH T TO BE RECTIFIED OR FROM THE DATE OF RECEIPT OF THE ORDER SOUGHT TO BE REVIEWED /RECTIFIED BY THE CONCERNED ASSESSEE? 9. A SIMILAR QUESTION AROSE BEFORE THE HON'BLE GUJA RAT HIGH COURT IN CASE OF LILADHAR T KHUSHLANI VS. COMMISSIONER OF CU STOMS (TAX APPEAL NO. 915 OF 2016) WHEREIN THE APPELLANT PREFE RRED AN APPEAL BEFORE HON'BLE GUJARAT HIGH COURT BECAUSE CENTRAL E XCISE & SERVICE TAX APPELLATE TRIBUNAL [CESTAT] HAS DISMISS ED THE RECTIFICATION APPLICATION ON THE GROUND THAT THE SA ID APPLICATION HAS BEEN PREFERRED BEYOND THE DATE OF SIX MONTHS FROM T HE DATE OF PASSING ORIGINAL ORDER. *** **** **** *** *** **** **** *** *** **** **** *** 12. THE ASSESSEE-APPLICANT FURTHER RELY ON HON'BLE MUMBAI BENCH MA NO. 140/MURN/2012 IN CASE OF PAWAN KUMAR JAIN V. DEPUTY COMMISSIONER OF INCOME-TAX -24(2) WHEREIN HON'BLE M UMBAI BENCH CONSIDERED LIMITATION PERIOD FROM THE DATE OF RECEI PT OF ORDER AND ALLOWED THE MA FILED AFTER A GAP OF SIX YEARS. THE FINDING RECORDED BY HON'BLE BENCH IN PARA 18 OF ITS ORDER READS AS U NDER: '18. THUS, LOOKING TO THE FACTS OF THE CASE, WE HOL D THAT THE DATE OF ORDER, AS ENVISAGED IN SECTION 254(2) SHOUL D BE CONSTRUED TO MEAN THE DATE WHEN THE ORDER IS RECEIV ED OR COMMUNICATED TO EITHER PARTY...........' 13. IN VIEW OF THE ABOVE RESPECTFUL SUBMISSION, IT IS HUMBLY PRAYED THAT THERE IS NO DELAY IN FILING MA APPLICATION BEC AUSE THE SAME HAS BEEN FILED WITHIN SIX MONTHS FROM THE DATE OF RECEI PT OF ORDER. 14. IT IS FURTHER PRAYED THAT THE ASSESSEE-APPLICAN T IS VERY MUCH INTERESTED IN PURSUING THE MATTER AND THEREFORE THE ORDER OF HON'BLE ITAT MAY KINDLY BE RECALLED IN THE INTEREST OF JUST ICE. 3. IT IS SUBMITTED BY THE LD.COUNSEL FOR THE ASSESS EE THAT SINCE THERE IS SUFFICIENT REASONS FOR THE ASSESSEE FOR NOT FILI NG THE APPEAL IN TIME, MA NO.400/AHD/2019 4 THE DELAY IN FILING THE MA. MAY BE CONDONED, AND TH E MA MAY BE TAKEN FOR HEARING ON MERIT. 4. THE LD.COUNSEL FOR THE ASSESSEE HAS ALSO SUBMITT ED THAT THE ASSESSEE WANT TO AVAIL BENEFIT UNDER THE VSV SCHEME . IT HAS FILED FORM NO.1 AND 2, (COPIES OF WHICH ARE PLACED ON REC ORD), THEREFORE, THE MAS MAY BE RESTORED TO CONSIDER THE SAME ON MER IT. HE ALSO DRAWN OUR ATTENTION TO QUESTION NO.61 CONTAINED IN THE CBDT CIRCULAR NO.21 OF 2020 DATED 4.12.2020 WHICH READS AS UNDER: Q.NO.61 WHETHER MISCELLANEOUS APPLICATION (MA)PENDI NG AS ON 31 ST JANUARY, 2020 WILL ALSO BE COVERED BY THE SCHEME ? ANSWER: IF THE MA PENDING ON 31 ST JAN 2020 IS IN RESPECT OF AN APPEAL WHICH WAS DISMISSED IN LIME (BEFORE 31 ST JAN, 2020) SUCH MA IS ELIGIBLE. DISPUTED TAX WILL BE COMPUTED WITH REFERENCE TO THE APPEAL WHICH WAS DISMISSED ? 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE RECORD CAREFULLY. THE REASONS FOR DELAY IN FILING PRESEN T MA CANNOT BE SIMPLY BRUSHED ASIDE, AS THE SAME ARE BASED ON THE FACTS NARRATED BY THE ASSESSEE AND SUPPORTED BY AN AFFIDAVIT WHICH DE SERVE REASONABLE AND LENIENT CONSIDERATION IN VIEW OF RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULE 1963. FURTHER, THE CBDT A LSO EXPLAINED VIDE CIRCULAR DATED 4.12.2020 (SUPRA) THAT MA PENDI NG AS ON 31 ST JANUARY, 2020 WOULD ALSO BE COVERED UNDER THE VIVAD SE VISHWAS SCHEME. IN VIEW OF THIS, AND COUPLED WITH THE FACT THAT THE ASSESSEE HAS FILED LETTER DATED 4.12.2020 STATING THEREIN TH AT THE ASSESSEE WANTS TO SETTLE THE ISSUE UNDER VIVAD SE VISHWAS SCHEME A ND THE WILLINGNESS OF THE ASSESSEE-COMPANY TO AVAIL THE BENEFIT OF THE SCHEME, WHICH MA NO.400/AHD/2019 5 CLAIM ARE SUPPORTED BY FORM NO.1 AND 2 (COPIES OF W HICH PLACED ON RECORD), WE CONDONE THE DELAY IN FILING THE MA., AN D ALLOW THE ASSESSEE FOR EXERCISING OPTION TO AVAIL BENEFIT UND ER VSV SCHEME. CONSIDERING THE ABOVE FACTS AND CIRCUMSTANCES, THE MA OF THE ASSESSEE IS ALLOWED AND REGISTRY IS DIRECTED TO LIS T THE APPEAL FOR HEARING ON 4 TH FEBRUARY, 2021. 6. IN THE RESULT, THE MA IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 23 RD DECEMBER, 2020 AT AHMEDABAD. S D / - (MS.MADHUMITA ROY) JUDICIAL MEMBER S D / - (AMARJIT SINGH) ACCOUNTANT MEMBER