SHRI D. KUMAR, CHENNAI V. ITO, NCW - 8 (3), CHENNAI

MA 47/CHNY/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2882 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-09-2022
• Assessment Year: 2016-2017
• Appeal Filed On: 18-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 254(2)

Judgement Text

आयकर अपीलीय अिधकरण, ’ए’ Ɋायपीठ, चेɄई IN THE INCOME-TAX APPELLATE TRIBUNAL ‘A’ BENCH, CHENNAI ŵी वी दुगाŊ राव Ɋाियक सद˟ एवं ŵी जी. मंजुनाथा, लेखा सद˟ के समƗ Before Shri V. Durga Rao, Judicial Member & Shri G. Manjunatha, Accountant Member M.P. No. 47/Chny/2022 [In I.T.A. No.2223/Chny/2019] Assessment Year: 2016-17 Shri D. Kumar, No. 85, Balaji Nagar, 3 rd Street, Alwarthirunagar, Chennai 600 087. [PAN:AQFPK0646R] Vs. The Income Tax Officer, Non Corporate Ward 8(3), Chennai 600 034. (अपीलाथŎ/Appellant) (ŮȑथŎ/Respondent) अपीलाथŎ की ओर से / Appellant by : Shri V.S. Jayakumar, Advocate ŮȑथŎ की ओर से/Respondent by : Shri D. Hema Bhupal, JCIT सुनवाई की तारीख/ Date of hearing : 09.09.2022 घोषणा की तारीख /Date of Pronouncement : 09.09.2022 आदेश /O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: By means of present Miscellaneous Petition, the assessee seeks to recall the order passed by the Tribunal in I.T.A. No.2223/Chny/2019 dated 05.01.2021 relevant to the assessment year 2016-17. 2. By referring to the miscellaneous petition, the ld. Counsel for the assessee has submitted that since the assessee could not pay the tax quantified within the stipulated time due to reasons beyond his control, M.P. No.47/Chny/22 2 it was prayed for revival/reinstatement of the appeal for adjudication on merits by affording an opportunity of being heard to the assessee. 3. The ld. DR has submitted that the Miscellaneous petition filed by the assessee is time-barred under section 254(2) of the Income Tax Act, 1961 [“Act” in short]. 4. We have heard the rival submissions. Vide order dated 05.01.2021, in I.T.A. No. 2223/Chny/2019, the Tribunal has permitted the assessee to withdraw its appeal as the assessee has preferred to avail Vivad-se-Vishwas Scheme 2020 for settlement of disputed tax and accordingly filed Form1 and 2 before the Designated Authority. However, since, the assessee could not pay the tax quantified in Form No. 3 within the stipulated time due to reasons beyond his control, it was prayed for pursuing the appeal filed before the Tribunal, we of the opinion that the main appeal of the assessee is liable to be revived/restored for adjudication on merits. 4.1 However, the miscellaneous petition filed by the assessee on 19.05.2022 before the ITAT is time barred under section 254(2) of the Act, as the Tribunal passed the appeal order on 05.01.2021 and the M.P. No.47/Chny/22 3 assessee was required to file the Miscellaneous Petition within six months for recalling the appeal order of the Tribunal. 4.2 However, in the case of M/s. Nannusamy Mohan (HUF) v. ACIT in T.C.A. No. 372 of 2020 vide order dated 16.10.2020, the Hon'ble Madras High Court has observed and held as under: “7. As observed, the assessee is given liberty to restore this appeal in the event the ultimate decision to be taken on the declaration to be filed by the assessee under Section 4 of the said Act is not in favour of the assessee. If such a prayer is made, the Registry shall entertain the prayer without insisting upon any application to be filed for condonation of delay in restoration of the appeal and on such request made by the assessee by filing a Miscellaneous Petition for Restoration, the Registry shall place such petition before the Division Bench for orders.” 4.3 Respectfully following the above of the Hon’ble Jurisdictional High Court, by allowing the petition filed by the assessee, the order of the Tribunal in I.T.A. No.2223/Chny/2019 dated 05.01.2021 is recalled and directed the Registry to post the appeal for hearing on regular course. Accordingly, the miscellaneous petition filed by the assessee is allowed. M.P. No.47/Chny/22 4 5. In the result, the miscellaneous petition filed by the assessee is allowed. Order pronounced on 09 th September, 2022 at Chennai. Sd/- Sd/- (G. MANJUNATHA) ACCOUNTANT MEMBER (V. DURGA RAO) JUDICIAL MEMBER Chennai, Dated, 09.09.2022 Vm/- आदेश की Ůितिलिप अŤेिषत/Copy to: 1. अपीलाथŎ/Appellant, 2.ŮȑथŎ/ Respondent, 3. आयकर आयुƅ (अपील)/CIT(A), 4. आयकर आयुƅ/CIT, 5. िवभागीय Ůितिनिध/DR & 6. गाडŊ फाईल/GF.