NAIMESH MISHRA, MUMBAI V. ITO 17(3)(3), MUMBAI

MA 49/MUM/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5283 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 19-02-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BRAJENDRA KUMAR LD
• Assessee Lawyers: PANKAJ TOPRA NI LD
• Keywords: Period of limitation; Time period of passing order
• Section: 254(2); 113

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE HONBLE SHRI MANOJ KUMAR AGGARWAL, AM & HONBLE SHRI RAVISH SOOD , J M (HEARING THROUGH VIDEO CONFERENCING MODE) M. A. NO. 49 / MUM/ 2021 (ARISING OUT OF ITA NO. 4787 /MUM/201 3 ) ( / ASSESSMENT YEAR: 20 09 - 10 ) NAIMESH RAMAKANT MISHRA 204,70/74, SAIKRIPA, K. K. MARG, JACOB CIRCLE, MUMBAI - 400 018 / VS. ITO 17(3)(3 ) ROOM NO.613, PIRAMAL CHAMBERS JIJEEBHAI LANE, MORARJI MILLS PAREL, MUMBAI - 400 012 ./ ./ PAN/GIR NO. A A NPM - 5267 - C ( / APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SHRI PANKAJ TOPRA NI LD. AR REVENUE BY : SHRI BRAJENDRA KUMAR - LD. SR. D R / DATE OF HEARING : 27/08 /2021 / DATE OF PRONOUNCEMENT : 24/09/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSESSEE SEEKS R ECALL OF EX - PARTE ORDER PASSED BY TRIBUNAL IN CAPTIONED AP PEAL ON 13/12/201 7 . THE APPLICATION HAS BEEN FILED ON 19/02/2021 ALONG WITH LETTER OF CONDONATION AS SUPPORTED BY AFFIDAVIT OF THE ASSESSEE. THE MATERIAL CONTENTS OF THE AFFIDAVIT READ AS UNDER: - 1 . I HAD NEITHER RECEIVED ANY NOTICE OF TRIBUNAL APPEAL HEARING BEARING ITA NO. 4787 /MUM/ 2013 NOR WAS AWARE OF THE DATE ON WHICH THE ORDER WAS PASSED. SINCE 2 NO NOTICE OF THE SAID HEARING WAS RECEIVED BY ME, NOBODY APPEARED AND HENCE THE ORDER WAS PASS ED EX - PARTE. 2. I BECAME AWARE OF SUCH ORDER RECENTLY IN THE MONTH OF JANUARY, 2021 WHEN THE INCOME TAX OFFICER INFORMED ME. AS I WANTED TO OPT FOR VIVAD SE VISHWAS SCHEME I HAVE ALREADY FILED FORM 1 WHICH IS A DECLARATION FORM BUT NOW I REALISE THAT TH ERE IS NO PENDING PROCEEDING AS THE TRIBUNAL HAS ALREADY PASSED EX - PARTE ORDER. 3. THE DATE OF TRIBUNAL ORDER IS 13.12.2017. SINCE I WAS NOT AWARE OF SUCH TRIBUNAL ORDER NO APPEAL AGAINST SUCH ORDER IS FILED IN THE HIGH COURT. I CAN ONLY OPT FOR VIVAD SE VISHWAS SCHEME IF ANY APPEAL OR APPLICATION IS PENDING BEFORE ANY INCOME TAX AUTHORITIES. AS PER SECTION 254(2) OF THE INCOME TAX ACT, 1961, THE TIME LIMIT OF FILING MISCELLANEOUS APPLICATION IS 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE IMPUGNED O RDER OF THE HONBLE TRIBUNAL IS PASSED. IN ORDER TO RECALL THE EX - PARTE ORDER PASSED ON 13.12.2017, THE TIME LIMIT OF FILING MISCELLANEOUS APPLICATION WAS 30.06.2018. 4. HOWEVER, THE SAME WAS FILED ON 19 TH FEBRUARY, 2021 ONE MONTH AFTER I CAME IN KNOWLEDGE OF THE TRIBUNAL ORDER AND AFTER HAVING DETAILED CONSULTATION WITH MY CHARTERED ACCOUNTANTS. I STATE THAT MY MISCELLANEOUS APPLICATION WAS FILED IN TIME AND THAT THE LIMITATION PERIOD WILL START FROM THE DATE WHEN I CAME IN KNOWLEDGE OF THE SAID ORDER. I R ELY ON THE RATIO OF THE FOLLOWING DECISIONS: I) PACIFIC PROJECTS LTD. VS. ACIT (430 ITR 522) (2021) (DELHI HC). IN THIS DECISION THE DELHI HC HAS HELD THAT THE LIMITATION PERIOD WOULD NOT START FROM THE DATE ON WHICH ORDER WAS PRONOUNCED BY THE TRIBUNAL BU T IT WOULD START FROM POINT WHEN SAID ORDER CAME IN KNOWLEDGE OF THE ASSESSEE. II) PAWAN KUMAR JAIN VS. DCIT (155 TTJ 114) (2013) (MUMBAI TRIBUNAL) IN THIS DECISION THE MUMBAI TRIBUNAL HAS HELD THAT FOR THE PURPOSE OF FILING APPLICATION UNDER SECTION 2 54(2), PERIOD OF LIMITATION WOULD START FROM POINT OF TIME WHEN SAID ORDER IS COMMUNICATED TO ASSESSEE AND NOT FROM DATE OF PASSING THE ORDER. III) D ARYAPUR SHETKARI SAHAKARI GINNING AND PRESSING FACTORY VS. ACIT (277 TAXMAN 155) (2021) (BOMBAY HC). IN THI S DECISION THE BOMBAY HC HAS HELD THAT THE PERIOD OF LIMITATION PRESCRIBED IN SECTION 254(2) WOULD COMMENCE FROM THE DATE WHEN AFFECTED PARTY GOT KNOWLEDGE OF DECISION IN QUESTION AND IT WOULD NOT COMMENCE FROM DATE WHEN ORDER WAS PASSED. I STATE THAT WHAT EVER HAS BEEN STATED ABOVE IS TRUE TO MY OWN KNOWLEDGE. SUBSEQUENTLY, THE COPIES OF FORM NO.1 & FORM NO.2 AS FILED BY THE ASSESSEE UNDER RULE 3 OF DIRECT TAX VIVAD SE VISHWAS SCHEME ON 06/03/2021 FOR THIS YEAR HAS ALSO BEEN PLACED ON RECORD. ON THE STRENG TH OF THESE DOCUMENTS, THE LD. AR SOUGHT RECALL OF THE EX - PARTE ORDER. 2. AFTER GOING THROUGH THE APPLICATION, WE FIND THAT IT IS THE SUBMISSION OF THE ASSESSEE THAT HEARING NOTICE OF THE APPEAL WAS NOT RECEIVED. FURTHER, THE EX - PARTE ORDER WAS NOT IN THE KNOWLEDGE OF THE ASSESSEE 3 UNTIL JANUARY, 2021 WHEN INCOME TAX OFFICER INFORMED HIM ABOUT THE SAME. AS COUNTED FROM THIS DATE, THE MISCELLANEOUS APPLICATION IS WITHIN TIME LIMIT OF 6 MONTHS. THE HONBLE DELHI HIGH COURT IN RECENT DECISION TITLED AS PACIFIC PROJECTS PRIVATE LTD. V/S ACIT (125 TAXMANN.COM 94; 23/12/2020), IN THE CONTEXT OF SEC.254(2) OF THE INCOME TAX ACT, 1961, HAS HELD THAT THE LIMITATION PERIOD WOULD START FROM THE POINT WHEN THE ORDER CAME IN KNOWLEDGE OF THE ASSESSEE . WHEN THE ASSESSEE H AS PREFERRED MISCELLANEOUS APPLICATION WITHIN 6 MONTHS FROM THE DATE WHEN THE EX - PARTE ORDER CAME INTO THE KNOWLEDGE OF THE ASSESSEE , THE S A ID APPLICATION WAS TO BE ACCEPTED . WE FIND THAT IN THIS CASE BEFORE HONBLE HIGH COURT , THE EX - PARTE ORDER WAS PASSE D BY TRIBUNAL ON 01/09/2017 WHICH IS QUITE SIMILAR TO ORDER UNDER CONSIDERATION BEFORE US WHICH HAS BEEN PASSED ON 13/12/2017 AND THEREFORE, THE RATIO OF THIS DECISION IS SQUARELY APPLICABLE TO PRESENT APPLICATION BEFORE US. 3. WE FIND THAT W HILE ALLOWING THE ASSESSEES WRIT PETITION, THE HONBLE COURT RELIED ON IT S EARLIER DECISION TITLED AS GOLDEN TIMES SERVICES PRIVATE LTD. V/S DCIT (2020; 113 TAXMANN.COM 524) WHICH HELD THAT THE COURTS HAVE ALWAYS LEANED IN FAVOUR OF AN INTERPRETATION WHICH WOULD ENABLE AN AGGRIEVED PARTY TO AVAIL ITS REMEDY IN A MEANINGFUL MANNER S O THAT THE RIGHT CONFERRED BY A PROVISION DOE S NOT REMAIN FANCIFUL OR ILLUS I ONARY. RELYING UPON THE SAME, HONBLE COURT HELD THAT THE LIMITATION WOULD BE GIN TO RUN WHEN THE AFFECT ED PERSON HAS THE KNOWLEDGE OF THE DECISION. THE DATE WHEN THE O RDER WAS PASSED CANNOT BE SOLELY DETERMINED BY REFERRING TO THE DATE WHEN THE S A ME WAS SIGNED BY THE ITAT. THE SECTION AND THE RULE MANDATES THE COMMUNICATION OF ORDERS TO THE PAR TIES. T HUS, THE DATE OF CO MMUNICATION OR KNOWLEDGE , ACTUAL O R CONSTRUCTIVE, OF THE ORDER SOUGHT TO BE RECTIFIED OR AMENDED U/S 254(2) OF 4 THE A CT BECOME CRITICAL AND DETERMINATIVE FOR THE COMMENCEMENT OF PERIOD OF LIMITATION. THE ITAT HAS NOT APPLIED ITS MIND ON THIS ASPECT AND HAS BEEN SWAYED BY THE LITERAL AND MECHANICAL CONSTRUCTION OF THE WORDS SIX MONT H S FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED. THE ITAT FAILED TO EVEN DELVE IN TO THE QUESTION WHETHER THE AFFECTED PARTY, EITHER ACTUALLY OR CONSTRUCTIVELY, WAS IN KNOWLEDGE OF THE ORDER PASSED BY THE TRIBUNAL . ACCORDINGLY, THE ASSESSEES PETITION WAS ALLOWED. 4. SIMILAR IS THE DECISION OF HONBLE BOMBAY HIGH COURT IN DARYAPUR SHETKARI SAHAKARI GINNING AND PRESSING FACTORY V/S ACIT (123 TAXMANN.COM 301; 16/10/2020) W HEREIN IT WAS HELD THAT PERIOD OF LIMITATION WOULD COMMENCE ONLY FROM THE DATE ON WHICH THE ORDER CAME INTO THE KNOWLEDGE OF THE ASSESSEE. THE HONBLE COURT, REFERRING TO RULE 24 OF INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, OBSERVED THAT WHEN THE APPEAL IS CALLED FOR HEARING BUT THE APPELLANT DOES NOT APPEAR EITHER IN PERSON OR THROUGH AN AUTHORIZED REPRESENTATIVE THEN THE TRIBUNAL IS REQUIRED TO DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE RESPONDENT. IF SUCH COURSE HAS BEEN FOLLOWED AND THE APPELL ANT APPEARS THEREAFTER AND FURNISHED SUFFICIENT CAUSE FOR ITS NON - APPEARANCE THEN TRIBUNAL CAN SET - ASIDE THE EX - PARTE ORDER. WHILE ALLOWING THE APPEAL, HONBLE COURT ALSO ACCEPTED THE RATIO LAID DOWN IN THE DECISION OF HONBLE DELHI HIGH COURT IN GOLDEN TI MES SERVICES PRIVATE LTD. V/S DCIT (SUPRA). 5. THUS, APPLYING THE AFORESAID PRINCIPLES, WE WOULD HOLD THAT THE LIMITATION PERIOD WOULD RUN FROM THE DATE WHEN THE EX - PARTE ORDER PASSED BY TRIBUNAL CAME INTO THE KNOWLEDGE OF THE ASSESSEE. FURTHER, SINCE THE ASSESSEE HAS ALREADY OPTED TO SETTLE THE DISPUTE UNDER DIRECT TAX VIVAD SE VISHWAS SCHEME, WE SEE NO REASON AS TO THE WHY THE EX - PARTE ORDER 5 SHOULD NOT BE RECALLED. THEREFORE, WE RECALL THE EX - PARTE ORDER DATED 13/ 1 2/2017 AND RESTORE THE APPEAL BACK TO ITS ORIGINAL POSITION AND NUMBER. THE REGISTRY IS DIRECT TO PLACE THE APPEAL FOR REGULAR HEARING BEFORE REGULAR BENCH. 6. THE APPLICATION STAND ALLOWED IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED ON 24 TH SEPTEMBER, 2019 SD/ - SD/ - ( RAVISH SOOD ) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 24/09/2021 SR.PS, DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.