DEPUTY COMMISSIONER OF INCOME TAX 1 (1) (2), MUMBAI V. HINDUSTAN UNILEVER LIMITED , MUMBAI

MA 497/MUM/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8178 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: K
• Assessment Year: 2009-2010
• Appeal Filed On: 19-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Condonation of delay

Judgement Text

P A G E | 1 M.A. NO.497/MUM/2018 A.Y. 2009 - 10 (ARISING OUT OF ITA NO.1321/MUM/2014) THE DY. COMMISSIONER OF INCOME TAX VS. M/S HINDUSTAN UNILEVER LTD. IN THE INCOME TAX APPELLATE TRIBUNAL K BENCH, M UMBAI BEFORE SHRI MANOJ KUMAR AGGARWAL, AM AND SHRI RAVISH SOOD, JM M.A. NO. 497 /MUM/2018 (ARISING OUT OF ITA NO. 1321/MUM/2014 ) ( / ASSESSMENT YEAR:2009 - 10 ) THE DY. COMMISSIONER OF INCOME TAX - 1(1)(2), ROOM NO. 533, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400 202 / VS. M/S HINDUSTAN UNILEVER LIMITED UNILEVER HOUSE, B.D. SAWANT MARG, CHAKALA, MUMBAI - 400 099 ./ ./ PAN NO. AAACH1004N ( / APPLICANT) : ( / RESPONDENT ) / APPLICANT BY : SHRI SUHAS KULKARNI, D.R / RESPONDENT BY : SHRI NISHANT THAKKAR & MS. JASMIN AMALSADWALA, A.R S / DATE OF HEARING : 28.12 .2018 / DATE OF PRONOUNCEMENT : 2 8 .12 .2018 / O R D E R PER RAVISH SOOD, JUDICIAL MEMBER: THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE REVENUE ON 19.07.2018 UNDER SEC.254(2) OF THE INCOME TAX ACT, 1961 (FOR SHORT I.T. ACT) ARISES OUT OF THE ORDER PASSED BY THE TRIBUNAL I.E. HINDUSTAN UNILEVER LTD. VS. ADDL. CIT, RANGE - 1(1), MUMBAI (ITA NO.1321/MUM/2014; DATED 05 .01.2018). AS THE PRESENT APPLICATION HAS BEEN FILED BEYOND THE PRESCRIBED TIME LIMIT CONTEMPLATED UNDER SEC.254(2) OF THE I.T. ACT, THEREFORE, AN P A G E | 2 M.A. NO.497/MUM/2018 A.Y. 2009 - 10 (ARISING OUT OF ITA NO.1321/MUM/2014) THE DY. COMMISSIONER OF INCOME TAX VS. M/S HINDUSTAN UNILEVER LTD. APPLICATION SEEKING CONDONATION OF DELAY OF 14 DAYS HAS BEEN FILED BY THE REVENUE ALONG WITH THE SAME . 2. TH E LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) SUBMITTED THAT AS THE DELAY INVOLVED IN FILING OF THE PRESENT APPLICATION HAD OCCASIONED DUE TO SHORTAGE OF STAFF AND HEAVY WORKLOAD AT THE END OF THE AUTHORITIES CONCERNED , THEREFORE, THE SAME MAY BE CON DONED AND THE MATTER BE DECIDED ON MERITS. PER CONTRA, THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) SUBMITTED THAT AS THE PRESENT APPLICATION FILED BY THE REVENUE UNDER SEC.254(2) OF THE I.T. ACT WAS BEYOND THE STIPULATED TIME PERIOD, THUS THE SAME WAS NOT MAINTAINABLE AND DESERVED TO BE DISMISSED ON THE SAID COUNT ITSELF. IT WAS AVERRED BY THE LD. A.R THAT AS PER THE EXTANT LAW AN APPLICATION UNDER SEC.254(2) WOULD BE MAINTAINABLE ONLY IF THE SAME WAS FILED FOR RECTIFICATION OF ANY MISTAKE WHICH WAS GLARING, APPARENT, PATENT AND OBVIOUS FROM RECORD , WITHIN A PERIOD OF 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED. IT WAS THUS THE CONTENTION OF THE LD. A.R THAT AS THE PRESENT APPLICATION FILED BY THE REVENUE WAS ADMITTEDLY BEYOND TH E STIPULATED TIME PERIOD CONTEMPLATED IN SEC. 254(2), THUS THE SAME WAS NOT MAINTAINABLE AND COULD NOT BE PROCEEDED WITH . 3. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES FOR BOTH THE PARTIES AND PERUSED THE APPLICATION FILED BY THE REVENUE BEFORE US UNDER SEC.254(2) OF THE I.T. ACT. ADMITTEDLY, THE AFOREMENTIONED MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE REVENUE BEYOND THE STIPULATED TIME PERIOD OF 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER UNDER SEC.254(1) WAS PA SS ED BY THE TRIBUNAL. IN OU R CONSIDERED VIEW , A MISCELLANEOUS APPLICATION FILED UNDER SEC. 254(2) BEYOND THE PRESCRIBED TIME PERIOD OF 6 MONTHS FROM THE DATE ON WHICH THE ORDER UNDER SEC. 254(1) HAD BEEN PASSED WOULD NOT BE MAINTAINABLE. WE FIND THAT THOUGH THE LEGISLATURE IN ALL ITS WISDOM HAD VESTED POWERS WITH THE TRIBUNAL TO CONDONE A DELAY INVOLVED IN FILING OF AN APPEAL, HOWEVER IN ABSENCE OF ANY ALIKE ENABLING STATUTORY PROVISION IN RESPECT OF AN APPLICAT ION FILED UNDER SEC. 254(2) BEYOND THE PRESCRIBE D TIME PERIOD, NO SUCH POWER TO CONDONE THE DELAY THEREIN INVOLVED CAN BE ASSUMED BY THE TRIBUNAL. OUR AFORESAID VIEW STANDS FORTIFIED BY THE ORDER P A G E | 3 M.A. NO.497/MUM/2018 A.Y. 2009 - 10 (ARISING OUT OF ITA NO.1321/MUM/2014) THE DY. COMMISSIONER OF INCOME TAX VS. M/S HINDUSTAN UNILEVER LTD. PASSED BY A COORDINATE BENCH OF THE TRIBUNAL VIZ. ITAT, J BENCH, MUMBAI WHILE DISPOSING OFF A MISCELLANEOUS APPLICATION FILED BY THE REVENUE IN THE CASE OF DCIT, CIRCLE - 6(4) VS. HITA LAND PVT. LTD. IN M.A NO. 103/MUM/2017, DATED 25.04.2017 . THE TRIBUNAL IN ITS AFORESAID ORDER WHILE DECLINING TO ENTERTAIN A MISCEL LANEOUS APPLICATION FILED BY THE REVENUE BEYOND THE PRESCRIBED TIME PERIOD CONTEMPLATED UNDER SEC.254(2), HAD OBSERVED AS UNDER: 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED RELEVANT MATERIAL ON RECORD. SINCE, PRELIMINARY LEGAL OBJECTIONS QUESTIONS THE VERY ADMISSIBILITY OF THESE REC TI FICATION APPLICATIONS, WE TAKE UP THE SAME FIRST. FOR RECORD, WE NOTE THAT THE DATE OF ORDER PASSED BY THE TRIBUNAL IS 22/03/2013 AND THE REVENUE HAS FILED THESE APPLICATIONS ON 28/0212017 WHICH ARE CLEARLY BEYOND A PE RIOD OF SIX MONTHS AS PROVIDED IN SECTION 254(2). AT THIS JUNCTURE, IT WOULD BE PRUDENT TO REPRODUCE THE RELEVANT PROVISIONS AS CONTAINED IN SECTION 254(2) OF THE INCOME TAX ACT, 1961: - ORDERS OF APPELLATE TRIBUNAL. 254. (1) THE APPELLATE TRIBUNA L MAY AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREON AS IT THINKS FIT. (1 A) [ *** ] (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER: IT IS TO B E NOTED THAT THE EARLI ER PERIOD OF 'FOUR YEARS' HAS BEEN SUBSTITUTED WITH 'SIX MONTHS' BY THE FINANCE ACT, 2016 WITH EFFECT FROM 01/06/2016. HOWEVER, WE FIND THAT DISTINCTION HAS BEEN MADE IN THIS SECTION BETWEEN ORDERS PASSED BEFORE 01/06/2016 (AND ORDERS PASSED AFTER 01/06/20 1 6. MOREOVER, THE TRIBUNAL ORDER WAS DATED 22/03/2013 AND THEREFORE, THE REVENUE HAD AMPLE TIME TO GO THROUGH THE SAME AND PIN POINT THE MISTAKES IN THE ORDER BUT IT HAS FAILED TO DO SO. T HEREFORE, WE FIND NO FORCE IN THESE MISCELLANEOUS PETITIONS PRIMARIL Y BECAUSE OF THE REASON THAT THE STATUTE DOES NOT AUTHORIZE US TO ENTERTAIN ANY PETITION WHICH HAS BEEN FILED U/S 254(2) AT ANY TIME BEYOND A PERIOD OF SIX MONTHS FROM THE DATE OF THE ORDER. THE TRIBUNAL HAS BEEN GIVEN POWER TO ADMIT A N APPEAL AFTER THE EX PIRY OF THE RELEVANT PERIOD, IF IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD AS PER SECTION 253(5). HOWEVER, THIS TRIBUNAL IS NOT ENSHRINED WITH SUCH POWERS IN RESPECT OF A MISCELLANEOUS PETITION FILED U/S 254(2) OF THE INCOME TAX ACT. IF WE ARE NOT GI VEN THAT P O WER THEN , IT IS NOT EXPECTED FROM US TO EXERCISE SUCH POWER WHICH IS NOT PROVIDED IN THE ACT. THE TRIBUNAL, CREATION OF LAW, IS BOUND BY THE STATUTORY PROVISIONS AND OUR JURISDICTION IS SIMPLY TO INTERPRET AND FOLLOW THE STATUTE. THERE IS NO SCOPE FOR US TO IMPORT ANY WORD INTO THE STATUTE WHICH IS NOT THERE. SUCH IMPORTATION WOULD BE NOTHING BUT TO P A G E | 4 M.A. NO.497/MUM/2018 A.Y. 2009 - 10 (ARISING OUT OF ITA NO.1321/MUM/2014) THE DY. COMMISSIONER OF INCOME TAX VS. M/S HINDUSTAN UNILEVER LTD. AMEND THE ST ATUTE. WE THEREFORE HOLD THAT THE CONDONATION OF DELAY OF THESE PETITIONS IS BEYOND OUR JURISDICTION, HENCE REJECTED. SIMILAR VIEW HAS BEEN TAKEN BY THE MUMBAI TRIBUNAL IN THE CITED ORDER. HENCE, FINDING THE PETITIONS TIME BARRING, WE DISMISS THE SAM E. W E THUS IN TERMS OF OUR AFORESAID OBSERVATIONS AND FINDING OURSELVES AS BEING IN AGREEMENT WITH THE AFORESAID VIEW TAKEN BY THE TRIBUNAL, THUS DECLINE TO ADMIT THE APPLICATION FILED BY THE REVENUE UNDER SEC.254(2) OF THE I.T. ACT. THE MISCELLANEOUS APPLICAT ION FILED BY THE REVENUE IS DISMISSED IN LIMINE IN TERMS OF OUR AFORESAID OBSERVATIONS. ORDER PRO NOUNCED IN THE OPEN COURT ON 2 8 . 12.2018 S D / - S D / - ( MANOJ KUMAR AGGARWAL ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 28.12.2018 PS. ROHIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI P A G E | 5 M.A. NO.497/MUM/2018 A.Y. 2009 - 10 (ARISING OUT OF ITA NO.1321/MUM/2014) THE DY. COMMISSIONER OF INCOME TAX VS. M/S HINDUSTAN UNILEVER LTD.