K.I. Venkatesh, Bangalore V. ITO, Bangalore

MA 51/BANG/2011

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2734 (ITAT-BANGALORE)
• Duration Of Justice: 7 year(s) 3 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 1998-1999
• Appeal Filed On: 11-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR PRA DEEP KUMAR
• Assessee Lawyers: R CHANDRASHEKAR
• Keywords: Period of limitation; Question of law; Reasonable cause; Time period of passing order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER M.P. NO. 51/BANG/2011 (IN ITA NO . 1769 /BANG/20 04 ) ASSESSMENT YEAR : 1998 - 99 SHRI K.I. VENKATESH, 323, 14 TH CROSS, II BLOCK, R.T. NAGAR, BANGALORE 560 032. PAN: AACPI3934R VS. THE INCOME TAX OFFICER, WARD 8 (2), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI R. CHANDRASHEKAR, ADVOCATE RESPONDENT BY : DR. PRADEEP KUMAR, ADDL. CIT (DR) DATE OF HEARING : 15 .0 2 .2019 DATE OF PRONOUNCEMENT : 22 . 0 2 .201 9 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS M.P. IS FILED BY THE ASSESSEE ON 11.11.2011 SE EKING RECALL OF EX-PARTE TRIBUNAL ORDER DATED 29.06.2006. 2. IT IS STATED BY THE ASSESSEE IN THE M.P. THAT TH E IMPUGNED TRIBUNAL ORDER DATED 29.06.2006 WAS NEVER SERVED ON THE ASSESSEE A ND ASSESSEE HAS OBTAINED THE SAME ON 20.09.2011 BY FILING A LETTER DATED 15.09.2011.THESE CONTENTIONS ARE RAISED BY ASSESSEE IN PARA 4 OF THE M.P. WHICH IS REPRODUCED HEREINBELOW FOR READY REFERENCE. 4. AFTER FILING THE APPEAL THE APPLICANT HAS NOT RE CEIVED NEITHER THE HEARING NOTICE NOR THE ORDER COPY. HENCE THE ORDER WAS PASSED EX PARTY. THE APPLICANT VIDE HIS LETTER DATED 15-09-20 11 APPLIED FOR THE COPY OF THE LETTER AND RECEIVED BY THE APPLICANT ON LY ON 20-09-2011. 3. IN COURSE OF HEARING OF THE M.P., IT WAS POINTED OUT BY THE BENCH THAT M.P. FILED BY THE ASSESSEE IS TIME BARRED AND AS PER THE JUDGMENT OF HON'BLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF SRI MU NINAGA REDDY VS. ACIT IN W.P. NO. 25553/2018 (T-IT) DATED 12.07.2018 (KAR NATAKA), IT WAS HELD BY HON'BLE KARNATAKA HIGH COURT THAT UNDER THE PROVISI ONS OF SECTION 254(2), THE TRIBUNAL CANNOT GO BEYOND THE PROVISIONS OF SAI D SECTION. THE BENCH POINTED OUT THAT AS PER THE JUDGEMENT OF HON'BLE KA RNATAKA HIGH COURT, THE M.P. NO. 51/BANG/2011 (IN ITA NO. 1769/BANG/2004) PAGE 2 OF 7 TRIBUNAL HAS NO POWER TO CONDONE THE DELAY IN FILIN G THE M.P. BY THE ASSESSEE. IN REPLY, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT THIS JUDGEMENT IS IN RESPECT OF THOSE CASES WHERE THERE IS DELAY IN FILING OF M.P. BY THE ASSESSEE BUT IN THE PRESENT CASE, THIS IS TH E CASE OF THE ASSESSEE THAT THERE IS NO DELAY IN FILING OF M.P. BY THE ASS ESSEE BECAUSE THE IMPUGNED TRIBUNAL ORDER WAS RECEIVED BY THE ASSESSE E ON 20.09.2011 AND THE M.P. WAS FILED BY THE ASSESSEE ON 11.11.2011. HE SUBMITTED THAT FOR COMPUTING THE PERIOD UP TO WHICH THE M.P. CAN BE FI LED BY THE ASSESSEE, THE DATE OF ORDER IS NOT RELEVANT AND THE DATE OF RECEI PT OF THE ORDER HAS TO BE LOOKED INTO. IN SUPPORT OF THIS CONTENTION, HE PLA CED RELIANCE ON THE TRIBUNAL ORDER RENDERED IN THE CASE OF SHRI JAGMOHAN GURBAKS HISH SINGH VS. DCIT & M/S. UNIVERSAL PRINT O PACK VS. ITO IN M.A. NOS. 42 & 40/CHD/2018 DATED 27.04.2018. HE SUBMITTED A COPY OF THIS TRIBUNAL O RDER AND DRAWN OUR ATTENTION TO PARA NOS. 5 AND 6 OF THIS TRIBUNAL ORD ER AND IT WAS POINTED OUT THAT IN THIS CASE, THE TRIBUNAL HAS FOLLOWED THE JU DGMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF PETERPLAST SYNTH ETICS (P) LTD VS. ACIT AS REPORTED IN (2013) 86 CCH 0314 AND IN THE CASE O F LILADHAR T KHUSHLANI VS. COMMISSIONER OF CUSTOMS IN TAX APPEAL NO. 915 O F 2016 DATED 25.01.2017 AND HELD THAT THE RELEVANT DATE TO BE TA KEN IS THE DATE OF DISPATCH OR RECEIPT AND NOT THE DATE OF PASSING OF THE ORDER FOR THE PURPOSE OF COMPUTING THE DATE OF COMMENCEMENT OF THE LIMITA TION FOR FILING THE RECTIFICATION APPLICATION. HE ALSO PLACED RELIANCE ON THE JUDGEMENT OF HONBLE ALLAHABAD HIGH COURT RENDERED IN THE CASE O F VIJAY KUMAR RUIA VS. CIT &ORS. AS REPORTED IN [2011] 334 ITR 38 (ALL) AN D SUBMITTED THAT IN THIS CASE, AS PER PARA 41 OF THIS JUDGMENT, IT WAS HELD THAT FOR THE PURPOSES OF CALCULATING LIMITATION, THE EXPRESSION FROM THE DA TE OF THE ORDER, IS TO BE CONSTRUED TO MEAN THE DATE OF COMMUNICATION OR KNO WLEDGE OF THE ORDER. HE ALSO SUBMITTED THE COPY OF THE JUDGEMENT OF HON BLE GUJARAT HIGH COURT RENDERED IN THE CASE OF LILADHAR T KHUSHLANI VS. CO MMISSIONER OF CUSTOMS (SUPRA) WHICH WAS FOLLOWED BY THE TRIBUNAL IN THE C ASE OF SHRI JAGMOHAN GURBAKSHISH SINGH VS. DCIT& M/S. UNIVERSAL PRINT O PACK VS. ITO (SUPRA). 4. THE LD. DR OF REVENUE SUBMITTED THAT THE M.P. IS TIME BARRED BECAUSE IT IS FILED AFTER MORE THAN 5 YEARS FROM THE DATE OF TRIB UNAL ORDER AND THEREFORE, M.P. NO. 51/BANG/2011 (IN ITA NO. 1769/BANG/2004) PAGE 3 OF 7 THE PRESENT M.P. OF ASSESSEE IS NOT MAINTAINABLE AN D SHOULD BE DISMISSED AS SUCH. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL, WE NOTE DOWN THE FACTS OF THE PRESENT CASE WHICH ARE NOT IN DISPUTE. THE FACT IS THIS THAT THE IMPUGNED ORDER IS PASSED BY THE TRIBUNAL ON 29.06.2 006 AND AS PER THE M.P. FILED BY THE ASSESSEE, THE ORDER IN QUESTION W AS NOT RECEIVED BY THE ASSESSEE AND ON 15.09.2011, THE ASSESSEE APPLIED FO R COPY OF THE ORDER AND THE ORDER WAS RECEIVED BY THE ASSESSEE ONLY ON 20.09.2011 AND THE PRESENT M.P. WAS FILED BY THE ASSESSEE ON 11.11.201 1. HENCE IF IT IS FOUND AND HELD THAT THE DATE OF COMMUNICATION OF THE IMPU GNED ORDER OF THE TRIBUNAL IS RELEVANT FOR THE PURPOSE OF COMPUTING T HE LIMITATION PERIOD AND NOT THE DATE OF ORDER THEN THE M.P. OF THE ASSESSEE HAS TO BE ADMITTED AND DECIDED ON MERIT. THIS IS ALSO IMPORTANT TO NOTE T HAT DURING THIS PERIOD I.E. DURING THE YEAR 2006, THERE WAS NO SYSTEM OF PRONOU NCEMENT OF THE TRIBUNAL ORDER IN THE OPEN COURT AS AT PRESENT. TH IS IS ALSO TRUE THAT DURING THAT PERIOD, THE COPY OF ORDER WAS NOT BEING UPLOAD ED ON THE WEBSITE OF THE TRIBUNAL AS BEING DONE NOW. THIS IS ALSO SEEN THAT THE RELEVANT RECORDS OF THE TRIBUNAL IN RELATION TO THIS APPEAL IS NOT AVAI LABLE AND THEREFORE, THIS CANNOT BE EXAMINED AS TO WHETHER THE IMPUGNED ORDER WAS DISPATCHED TO THE ASSESSEE AND SERVED ON THE ASSESSEE AFTER PASSI NG OF THE SAME AND WHETHER THIS CLAIM OF THE ASSESSEE IS CORRECT THAT IMPUGNED ORDER WAS RECEIVED BY THE ASSESSEE ONLY ON 20.09.2011 IN REPL Y TO THE ASSESSEES REQUEST DATED 15.09.2011. HENCE, WE ACCEPT THIS CL AIM OF THE ASSESSEE THAT THE IMPUGNED TRIBUNAL ORDER WAS NOT RECEIVED B Y THE ASSESSEE PRIOR TO 20.09.2011 AND IT WAS RECEIVED ONLY ON 20.09.2011 I N REPLY TO ASSESSEES LETTER DATED 15.09.2011. IN THE LIGHT OF THESE FAC TS, NOW WE EXAMINE THE APPLICABILITY OF THE JUDGEMENT OF HONBLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF VIJAY KUMAR RUIA VS. CIT &ORS. (SUPRA). THE FACTS OF THIS CASE ARE NOTED BY HONBLE ALLAHABAD HIGH COURT IN PARAS 2 TO 9 OF THIS JUDGMENT WHICH ARE AVAILABLE ON PAGE NOS. 40 AND 41 OF 334 I TR. FOR READY REFERENCE, THESE PARAS ARE REPRODUCED HEREINBELOW. 2. A PORTION OF THE IMMOVABLE PROPERTY, PLOT NO. 80 /87, LATOUCHE ROAD, KANPUR WAS PUT TO AUCTION FOR REALISATION OF CERTAIN INCOME-TAX DUES OUTSTANDING IN THE NAME OF SMT. INDRAMANI SING HANIA. THE M.P. NO. 51/BANG/2011 (IN ITA NO. 1769/BANG/2004) PAGE 4 OF 7 AUCTION WAS CONDUCTED ON MARCH 22, 1988. RESPONDENT NO. 3 WAS THE HIGHEST BIDDER. THE AUCTION WAS CONFIRMED BY THE TA X RECOVERY OFFICER VIDE ORDER DATED APRIL 25, 1988 AND A CERTI FICATE OF SALE IN FAVOUR OF THE AUCTION PURCHASER, RESPONDENT NO. 3 W AS ISSUED ON THE SAME DAY. ONE GOBIND RAM TIBREWAL WHO WAS ONE OF TH E EXECUTORS OF THE WILL OF SMT. INDRAMANI SINGHANIA PREFERRED AN A PPEAL PURPORTING TO BE UNDER RULE 86 OF SCHEDULE 11 TO THE INCOME-TA X ACT (HEREINAFTER REFERRED TO AS THE ACT) BEFORE THE COMMISSIONER OF INCOME-TAX, KANPUR. ON THE DEATH OF GOBIND RAM TIBREWAL THE PET ITIONER CONTINUED WITH THE APPEAL BEING THE ADMINISTRATOR O F THE ESTATE OF THE LATE SMT. INDRAMANI SINGHANIA APPOINTED BY THE HIGH COURT VIDE ORDER DATED MAY 2, 1996 IN A TESTAMENTARY CASE NO. 12 OF 1980 AND THEREAFTER AS A RESIDUARY LEGATEE TO THE ESTATE OF THE AFORESAID DECEASED UNDER THE ORDER DATED JANUARY 4, 2000 OF T HE HIGH COURT. THE SAID APPEAL HAS BEEN DISMISSED AS NOT MAINTAINA BLE AND BEING BARRED BY TIME. 3. AGGRIEVED, THE PETITIONER HAS INVOKED THE WRIT J URISDICTION OF THIS COURT. 4. NECESSARY PLEADINGS BETWEEN THE PETITIONER AND R ESPONDENTS NOS. 1 AND 2 HAVE BEEN EXCHANGED AND ARE COMPLETE. 5. THE WRIT PETITION IS LISTED FOR FINAL HEARING. 6. COUNSEL FOR THE PETITIONER AND RESPONDENTS NOS. 1 AND 2 ARE READY AND AGREEABLE FOR FINAL HEARING. 7. RESPONDENT NO. 3 WAS EARLIER REPRESENTED BY A CO UNSEL BUT HE NEVER FILED ANY COUNTER-AFFIDAVIT. THE SAID COUNSEL HAVIN G DIED, RESPONDENT NO. 3 WAS ISSUED NOTICE BY THE OFFICE OF THE COURT BY REGISTERED POST TO ENGAGE ANOTHER COUNSEL. THE SERVICE OF THE NOTICE S O SENT TO RESPONDENT NO. 3 IS DEEMED TO BE SUFFICIENT IN VIEW OF THE PROVISIONS OF EXPLANATION II TO RULE 12 OF CHAPTER VIII OF THE RU LES OF THE COURT. HOWEVER, NO NEW COUNSEL HAS PUT IN APPEARANCE NOR A NYONE HAS COME FORWARD TO REPRESENT RESPONDENT NO. 3. 8. I HAVE HEARD SRI NAVIN SINHA, SENIOR ADVOCATE AS SISTED BY SRI VIPIN SINHA, LEARNED COUNSEL APPEARING FOR THE PETITIONER AND SRI SHAMBHU CHOPRA, LEARNED COUNSEL FOR RESPONDENTS NOS. 1 AND 2. 9. SRI SINHA SUBMITS THAT THE ORDER CONFIRMING THE SALE AND THE SALE CERTIFICATE BOTH DATED APRIL 25,1988 WERE SERVED UP ON THE PETITIONER ON AUGUST 29, 1988. THE PETITIONER ACQUIRED KNOWLED GE OF THE AUCTION SALE, THE ORDER OF SALE CONFIRMATION AND ISSUANCE O F THE SALE CERTIFICATE FOR THE FIRST TIME ON AUGUST 18, 1988. THE APPEAL U NDER RULE 86 OF SCHEDULE II TO THE ACT (HEREINAFTER REFERRED TO AS THE 'RULES') WAS FILED ON SEPTEMBER 19, 1988. IT IS WITHIN LIMITATION FROM THE DATE OF KNOWLEDGE. HE HAS FURTHER SUBMITTED THAT WHERE STAT UTES PROVIDE A PARTICULAR PERIOD FOR FILING AN APPEAL FROM THE DAT E OF THE ORDER, IT HAS M.P. NO. 51/BANG/2011 (IN ITA NO. 1769/BANG/2004) PAGE 5 OF 7 BEEN INTERPRETED TO MEAN THE DATE OF SERVICE OF THE ORDER. THEREFORE, THE ACTUAL DATE OF THE ORDER IS NOT MATERIAL FOR CA LCULATING LIMITATION FOR FILING APPEAL. THE ORDER CONFIRMING THE SALE DA TED APRIL 25, 1988 WAS SERVED AND COMMUNICATED TO THE PETITIONER ON AU GUST 29, 1988. THE APPEAL IS THEREFORE WITHIN TIME. 6. FROM THE ABOVE PARAS REPRODUCED FROM THIS JUDGEM ENT OF HONBLE ALLAHABAD HIGH COURT, IT IS SEEN THAT THIS WAS THE CLAIM OF THE ASSESSEE IN THIS CASE THAT ACTUAL DATE OF ORDER IS NOT MATERIAL FOR CALCULATING LIMITATION FOR FILING APPEAL. IT WAS ALSO CLAIMED BY THE ASSESSEE THAT THE ORDER CONFIRMING THE SALE DATED APRIL 25, 1988 WAS SERVED AND COMMUN ICATED TO THE PETITIONER ON AUGUST 29, 1988 AND THEREFORE, THE AP PEAL IS WITHIN TIME IF THE LIMITATION IS COUNTED FROM THE DATE OF KNOWLEDGE OF THE ORDER CONFIRMING THE SALE DATED 25.04.1988. UNDER THESE FACTS, PARA 41 OF THIS JUDGEMENT OF HONBLE ALLAHABAD HIGH COURT IS RELEVANT AND HENCE, WE REPRODUCE PARA 41 OF THIS JUDGEMENT ALSO WHICH IS AS UNDER. 41. IN SHORT, THE RATIO IS THAT FOR THE PURPOSES OF CALCULATING LIMITATION THE EXPRESSION FROM THE DATE OF THE ORD ER, IS TO BE CONSTRUED TO MEAN THE DATE OF COMMUNICATION OR KNO WLEDGE OF THE ORDER. 7. AS PER THIS JUDGEMENT OF HONBLE ALLAHABAD HIGH COURT, WHICH IS IN COURSE OF INCOME TAX PROCEEDINGS ONLY ALTHOUGH IN RESPECT OF FILING OF APPEAL AND NOT FILING OF M.A. U/S. 254(2), IT WAS HELD THAT FO R THE PURPOSE OF COUNTING LIMITATION PERIOD, THE DATE OF SERVICE OF THE CONCE RNED ORDER IS RELEVANT. 8. NOW WE ALSO EXAMINE THE APPLICABILITY OF THE TRI BUNAL ORDER RENDERED IN THE CASE OF SHRI JAGMOHAN GURBAKSHISH SINGH VS. DCIT (S UPRA). IN THIS CASE, THE TRIBUNAL ORDER WAS PRONOUNCED ON 24.05.2017 AND THE M.A. IN QUESTION WAS FILED BY THE ASSESSEE BEYOND PERMISSIBLE TIME A ND AS PER THE NOTE OF THE REGISTRY, THE ASSESSEE HAS FILED THIS M.A. AFTE R A DELAY OF FIVE DAYS. IT IS ALSO NOTED BY THE TRIBUNAL IN PARA 3 OF THIS TRIBUN AL ORDER THAT THE REGISTRY HAD TAKEN THE DATE OF PRONOUNCEMENT AS RELEVANT DAT E FOR CALCULATION OF PERIOD OF SIX MONTHS FROM THE END OF THE MONTH IN W HICH THE ORDER WAS PRONOUNCED. IN THE SAME PARA 3 OF THE TRIBUNAL ORD ER, IT WAS NOTED BY THE TRIBUNAL THAT THE ORDER WAS DISPATCHED BY THE REGIS TRY ON 29.06.2017, WHICH WAS RECEIVED BY THE ASSESSEE IN THE FIRST WEEK OF J ULY, 2017. PARA 5 OF THIS TRIBUNAL ORDER IS RELEVANT IN THIS REGARD AND HENCE , THE SAME IS REPRODUCED HEREINBELOW. M.P. NO. 51/BANG/2011 (IN ITA NO. 1769/BANG/2004) PAGE 6 OF 7 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE AS SESSEE HAS MOVED AN APPLICATION FOR RECALLING OF THE ORDER PLEADING THAT A MISTAKE APPARENT ON THE RECORD HAS OCCURRED IN THE IMPUGNED ORDER. THE MISTAKE CAN BE DUE TO WRONG APPRECIATION OF FACTS O R WRONG APPLICATION OF LAW; IT MAY EITHER BE DUE TO MISTAKE N BELIEF OF THE PARTIES TO THE LITIGATION OR WRONG APPLICATION OF L AW BY THE ADJUDICATING AUTHORITY. SO FAR AS THE ISSUE RELATIN G TO THE DATE OF COMMENCEMENT OF THE LIMITATION FOR FILING THE RECTI FICATION APPLICATION IS CONCERNED, THE POSITION IS SETTLED BY THE VARIOU S COURTS OF LAW INCLUDING THAT OF THE HON'BLE GUJARAT HIGH COURT IN `PEATERPLAST SYNTHETICS (P) LTD VS. CIT' (SUPRA) AND `LILADHAR T KHUSHLANI VS. COMMISSIONER OF CUSTOMS' (SUPRA), HOLDING THAT THE RELEVANT DATE HAS TO BE TAKEN AS THE DATE OF DISPATCH / RECEIPT OF TH E COPY OF THE ORDER AND NOT THE DATE OF PASSING OF THE ORDER. SINCE AS ON BOTH THE DATES I.E. DATE OF DISPATCH AS WELL AS DATED OF RECEIPT, THE A PPLICATION OF THE ASSESSEE WOULD BE DEEMED TO BE FILED WITHIN THE LIM ITATION PERIOD, HENCE, WE LEAVE THE QUESTION OF LAW OPEN AS TO WHET HER THE DATE OF DISPATCH OF ORDER OR THE DATE OF RECEIPT OF COPY OF THE ORDER BY THE CONCERNED PARTY IS TO BE TAKEN AS DATE OF COMMENCEM ENT OF LIMITATION PERIOD. 9. FROM THE ABOVE PARA REPRODUCED FROM THIS TRIBUNA L ORDER, IT IS SEEN THAT AS PER THIS TRIBUNAL ORDER WHICH IS PASSED BY FOLLOWIN G TWO JUDGEMENTS OF HONBLE GUJARAT HIGH COURT, IT WAS HELD THAT RELEVA NT DATE TO BE TAKEN FOR COUNTING THE LIMITATION PERIOD IS DATE OF DISPATCH / RECEIPT OF COPY OF THE ORDER AND NOT PASSING OF THE ORDER. THE TRIBUNAL H AS LEFT OPEN THIS QUESTION OF LAW AS TO WHETHER THE DATE OF DISPATCH OF ORDER OR THE DATE OF RECEIPT OF THE COPY OF ORDER BY THE CONCERNED PARTY IS RELEVAN T BECAUSE IT WAS FOUND BY TRIBUNAL IN THAT CASE THAT IF ANY ONE OF THESE D ATES IS CONSIDERED, THE M.P. FILED BY THE ASSESSEE IS WITHIN TIME. WE RESP ECTFULLY FOLLOW THIS TRIBUNAL ORDER AND IN TURN FOLLOW THE TWO JUDGMENTS OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF PETERPLAST SYNTHETICS (P) LTD VS. ACIT (SUPRA) AND IN THE CASE OF LILADHAR T KHUSHLANI VS. COMMISS IONER OF CUSTOMS (SUPRA) AND ALSO RESPECTFULLY FOLLOW THE JUDGMENT O F HONBLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF VIJAY KUMAR RUIA VS. CIT &ORS. (SUPRA) AND WE HOLD THAT IN THE FACTS OF PRESENT CASE, THE M.P. FILED BY THE ASSESSEE IS NOT TIME BARRED BECAUSE AS PER THE ASSESSEE, THE IM PUGNED TRIBUNAL ORDER DATED 29.06.2006 WAS NEVER SERVED ON THE ASSESSEE A ND IT WAS RECEIVED BY THE ASSESSEE ONLY ON 20.09.2011 IN REPLY TO ASSESSE ES REQUEST LETTER DATED 15.09.2011 AND WE HAVE NO MATERIAL AVAILABLE ON REC ORD TO DISPUTE THIS CLAIM OF THE ASSESSEE IN THE M.P. THAT THE IMPUGNED TRIBUNAL ORDER WAS M.P. NO. 51/BANG/2011 (IN ITA NO. 1769/BANG/2004) PAGE 7 OF 7 SERVED ON THE ASSESSEE ONLY ON 20.09.2011. AS PER VARIOUS JUDGEMENTS DISCUSSED ABOVE, THE DATE TO BE CONSIDERED FOR COUN TING THE LIMITATION PERIOD IS NOT THE DATE OF ORDER BUT THE DATE OF DISPATCH / SERVICE OF THE ORDER AND THEREFORE, RESPECTFULLY FOLLOWING THESE JUDGEMENTS, WE HOLD THAT THE PRESENT M.P. FILED BY THE ASSESSEE IS NOT TIME BARRED AND T HEREFORE, WE ADMIT THE SAME. 10. NOW WE DECIDE THE MERIT OF THE M.P. AS PER THE M.P. FILED BY THE ASSESSEE, THIS IS THE SUBMISSION OF THE ASSESSEE THAT THE ASS ESSEE HAS NOT RECEIVED THE NOTICE OF HEARING. THIS CLAIM OF THE ASSESSEE ALSO CANNOT BE DISPUTED BECAUSE NO EVIDENCE OF SERVICE OF NOTICE OF HEARING ON THE ASSESSEE IS AVAILABLE ON RECORD. SINCE THE NOTICE OF HEARING I S NOT RECEIVED BY THE ASSESSEE, IT HAS TO BE ACCEPTED THAT NONE APPEARANC E BEFORE THE TRIBUNAL ON BEHALF OF THE ASSESSEE ON THE APPOINTED DATE OF HEARING IS BECAUSE OF REASONABLE CAUSE. HENCE, IN VIEW OF RULE 24 OF INC OME TAX APPELLATE TRIBUNAL RULES, 1963, WE RECALL THIS EX-PARTE TRIBU NAL ORDER AND DIRECT THE REGISTRY TO FIX THIS APPEAL FOR HEARING IN DUE COUR SE. 11. IN THE RESULT, THE M.P. FILED BY THE ASSESSEE I S ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (N.V. VASUDEVAN) (ARUN KUMAR GARODIA) VICE PRESIDENT ACCOUNTANT MEMBER BANGALORE, DATED, THE 22 ND FEBRUARY, 2019. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.