SHAKUN ADVERTISING P LTD., Jaipur V. DCIT, Jaipur

MA 60/JPR/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 6036 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 25-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L PODAR
• Assessee Lawyers: R A VERMA
• Keywords: Rectification of order; Opportunity of being heard; Period of limitation; Condonation of delay

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM M.A NO. 60/JP/2017 (ARISING OUT OF ITA NO. 352/JP/2013) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 THE DCIT, CIRCLE-2, JAIPUR. CUKE VS. M/S SHAKUN ADVERTISING PVT. LTD. B-3, GIRIRAJ MANSION, 1 ST FLOOR, NEW COLONY, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABCS9742H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI R.A.VERMA (ADDL. CIT) JKTLO DH VKSJ LS @ REVENUE BY : SHRI S.L. PODAR (ADV.) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 15/12/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 27/12/2017 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. BY WAY OF THIS MISCELLANEOUS APPLICATION THE REVEN UE IS SEEKING RECALLING OF ORDER DATED 15.06.2016 OF THIS TRIBUNA L. THE MAIN GROUNDS OF THE REVENUE IN THIS MISCELLANEOUS APPLICATION IS THAT THE TRIBUNAL HAS PASSED THE IMPUGNED ORDER WITHOUT CONSIDERING THE S UBMISSIONS OF THE LD. DR AND THEREFORE, THERE IS APPARENT MISTAKE IN THE IMPUGNED ORDER DATED 15.06.2016 WHICH MAY BE RECTIFIED BY RECALLIN G THE ORDER AND DECIDED THE SAME AFRESH ON MERITS. M.A. NO. 60/JP/2017 M/S SHAKUN ADVERTISING PVT. LTD. VS. DCIT, JAIPUR 2 2. THE LD. AR OF THE ASSESSEE HAS RAISED THE PRELIM INARY OBJECTION OF MAINTAINABILITY OF THIS MISCELLANEOUS APPLICATION B EING BARRED BY LIMITATION. HE HAS CONTENDED THAT THE PRESENT MISCE LLANEOUS APPLICATION HAS BEEN FILED BY THE REVENUE BEYOND THE PERIOD OF LIMITATION BEING 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE IMPUG NED ORDER WAS PASSED. THUS, THE LD. AR OF THE ASSESSEE HAS SUBMIT TED THAT THE MISCELLANEOUS APPLICATION WHICH WAS FILED IN THE MO NTH OF MARCH, 2017 IS BEYOND THE PERIOD OF LIMITATION AND THEREFORE, I T IS NOT MAINTAINABLE. 3. IN REJOINDER, THE LD. DR HAS SUBMITTED THAT INIT IALLY THE REVENUE FILED AN APPEAL AGAINST THE IMPUGNED ORDER BEFORE T HE HONBLE JURISDICTION HIGH COURT HOWEVER, THE HONBLE RAJAST HAN HIGH COURT VIDE ORDER DATED 23.11.2016 DIRECTED THE DEPARTMENT TO A PPROACH THE TRIBUNAL AND CONSEQUENTLY THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED IN PURSUANT TO THE DIRECTIONS OF THE HON BLE HIGH COURT. THEN THE MISCELLANEOUS APPLICATION WITHIN THE PERIOD OF LIMITATION FROM THE DATE OF THE ORDER OF THE HONBLE HIGH COURT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. WE HAVE GIVEN OUR SINCERE THOUG HT TO PROVISION PROVIDING THE PERIOD OF LIMITATION AS WELL AS THE O RDER OF THE HONBLE M.A. NO. 60/JP/2017 M/S SHAKUN ADVERTISING PVT. LTD. VS. DCIT, JAIPUR 3 JURISDICTION HIGH COURT DATED 23.11.2016 IN ITA NO. 245/2016 WHICH IS REPRODUCED IN PARAA 1, 2 & 3 AS UNDER:- 1. THE FINDING WHICH HAS BEEN RECORDED BY THE TRIB UNAL IN PARA-4 READ AS UNDER:- NOW THE REVENUE IS IN APPEAL BEFORE US. THE LD. DR HAS VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFF ICER AND ARGUED THAT THE STATEMENT RECORDED U/S 132(4) HAS E VIDENTIARY VALUE UNDER THE INCOME TAX ACT. THIS GROUP HAS SURR ENDERED ADDITIONAL INCOME ON ACCOUNT OF INFLATED EXPENSES, THEREFORE, THIS YEAR ALSO, THE ASSESSEE SHOULD HONOUR THE DISCLOSUR E MADE BY THE DIRECTOR OF THE COMPANY DURING THE COURSE OF SEARCH . NUMBER OF INCRIMINATING DOCUMENTS WERE FOUND DURING THE COURS E OF SEARCH, ON WHICH THIS DISCLOSURE WAS MADE BUT LATER ON THE ASSESSEE HAS RETRACTED PARTLY FROM THE DISCLOSURE. 2. FURTHER, THE TRIBUNAL IN PARA 6, RECORDED THE FO LLOWING SPECIFIC FINDING: THE LD. DR HAS NOT CONTROVERTED THE FINDINGS GIVEN BY THE LD. CIT(A). 3. IN THIS VIEW OF THE MATTER, THE APPEAL IS NOT TH E PROPER REMEDY AND AS SUCH THE SAME IS NOT MAINTAINABLE. THE APPRO PRIATE REMEDY FOR THE APPELLANT IS TO APPROACH THE TRIBUNA L FOR APPROPRIATE RELIEF. ON CAREFUL PERUSAL OF THE ABOVE ORDER OF THE HONBL E JURISDICTION HIGH COURT, IT IS NOTED THAT THE HONBLE HIGH COURT HAS OBSERVED THAT THE APPEAL IS NOT THE PROPER REMEDY AND THE SAME IS NOT MAINTAINABLE AND APPROPRIATE REMEDY FOR THE APPELLANT IS TO APPROACH THE TRIBUNAL FOR APPROPRIATE RELIEF. THUS, THE HONBLE HIGH COURT HA S NEITHER THE DIRECTED THE REVENUE TO FILE THE MISCELLANEOUS APPLICATION N OR HAS EXPRESSED ANY VIEW ON THE LIMITATION FOR FILING THE MISCELLANEOUS APPLICATION. THE M.A. NO. 60/JP/2017 M/S SHAKUN ADVERTISING PVT. LTD. VS. DCIT, JAIPUR 4 HONBLE HIGH COURT AS JUST OBSERVED THAT THE GRIEVA NCE OF THE REVENUE COULD HAVE BEEN RAISED IN THE MISCELLANEOUS APPLICA TION INSTEAD OF FILING THE APPEAL. RATHER ON THE DATE OF PASSING THE ORDER DATED 23.11.2016 THE MISCELLANEOUS APPLICATION COULD HAVE BEEN FILED AND THE LIMITATION FOR FILING THE MISCELLANEOUS APPLICATION WAS STILL NOT EXPIRED. IT IS PERTINENT TO NOTE THAT THE LIMITATION FOR RECTIFICA TION OF MISTAKE APPARENT FROM RECORD AS PER AMENDED SECTION 254(2) IS 6 MONT HS FROM THE END OF THE MONTH IN WHICH THE ORDER IS PASSED. THE AMENDME NT HAS BEEN BROUGHT INTO THE STATUTE BY FINANCE ACT, 2016 W.E.F . 01.06.2016. SINCE, THE IMPUGNED ORDER WAS PASSED ON 15.06.2016, THEREF ORE, THE PERIOD OF LIMITATION WOULD RECKON FROM THE END OF JUNE, 2016 AND WOULD EXPIRE ON 31.12.2016. UNDISPUTEDLY THE MISCELLANEOUS APPLICAT ION OF THE REVENUE WAS FILED ON 31.03.2017 WHICH IS BEYOND THE PERIOD OF LIMITATION EXPIRED ON 31.12.2016. THE LIMITATION FOR RECTIFICATION IS PROVIDED IN THE INCOME TAX ACT AND THEREFORE, THE PROVISIONS OF GENERAL ST ATUTE I.E. THE LIMITATION ACT WOULD NOT BE APPLICABLE FOR THE PURP OSE OF LIMITATION OR CONDONATION OF DELAY. THE LEGISLATURE IN ITS WISDOM HAS NOT PROVIDED ANY PROVISION FOR CONDONATION OF DELAY IN THE INCOM E TAX ACT THOUGH, BY WAY OF THIS AMENDMENT IN SECTION 254(2) OF THE I NCOME TAX ACT THE LIMITATION FOR RECTIFICATION OF MISTAKE HAS BEEN RE DUCED FROM 4 YEARS TO M.A. NO. 60/JP/2017 M/S SHAKUN ADVERTISING PVT. LTD. VS. DCIT, JAIPUR 5 6 MONTHS. HENCE, IN THE ABSENCE OF ANY PROVISIONS F OR CONDONATION OF DELAY THE MISCELLANEOUS APPLICATION FILED AFTER THE EXPIRED OF LIMITATION IS NOT MAINTAINABLE. FOR READY REFERENCE, WE QUOTE SEC TION 254(2) AS UNDER:- (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN 72 [SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PA SSED], WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD 73 , AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1), AND 73 SHALL MAKE SUCH AMENDMENT 73 IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE 74 [ASSESSING] OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCIN G AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INC REASING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO T HE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD : 75 [ PROVIDED FURTHER THAT ANY APPLICATION FILED BY THE ASSESSEE IN THIS SUB-SECTION ON OR AFTER THE 1ST DAY OF OCTOBER , 1998, SHALL BE ACCOMPANIED BY A FEE OF FIFTY RUPEES.] 76 [(2A) IN EVERY APPEAL, THE APPELLATE TRIBUNAL, WHER E IT IS POSSIBLE, MAY HEAR AND DECIDE SUCH APPEAL WITHIN A PERIOD OF FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WH ICH SUCH APPEAL IS FILED UNDER SUB-SECTION (1) 77 [OR SUB-SECTION (2)] 78 [***] OF SECTION 253 : 79 [ PROVIDED THAT THE APPELLATE TRIBUNAL MAY, AFTER CONSIDERING THE MERITS OF THE APPLICATION MADE BY THE ASSESSEE, PASS AN ORDER OF STAY IN ANY PROCEEDINGS RELATING TO AN APP EAL FILED UNDER SUB-SECTION (1) OF SECTION 253 , FOR A PERIOD NOT EXCEEDING ONE HUNDRED AND EIGHTY DAYS FROM THE DATE OF SUCH ORDER AND THE APPELLATE TRIBUNAL SHALL DISPOSE OF THE APPEAL WITH IN THE SAID PERIOD OF STAY SPECIFIED IN THAT ORDER: M.A. NO. 60/JP/2017 M/S SHAKUN ADVERTISING PVT. LTD. VS. DCIT, JAIPUR 6 PROVIDED FURTHER THAT WHERE SUCH APPEAL IS NOT SO DISPOSED OF WITHIN THE SAID PERIOD OF STAY AS SPECIFIED IN THE ORDER OF STAY, THE APPELLATE TRIBUNAL MAY, ON AN APPLICATION MADE IN THIS BEHALF BY THE ASSESSEE AND ON BEING SATISFIED THAT THE DEL AY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE, EXTEND THE PERIOD OF STAY, OR PASS AN ORDER OF STAY FOR A FURT HER PERIOD OR PERIODS AS IT THINKS FIT; SO, HOWEVER, THAT THE AGG REGATE OF THE PERIOD ORIGINALLY ALLOWED AND THE PERIOD OR PERIODS SO EXTENDED OR ALLOWED SHALL NOT, IN ANY CASE, EXCEED THREE HUN DRED AND SIXTY-FIVE DAYS AND THE APPELLATE TRIBUNAL SHALL DI SPOSE OF THE APPEAL WITHIN THE PERIOD OR PERIODS OF STAY SO EXTE NDED OR ALLOWED: 80 [ PROVIDED ALSO THAT IF SUCH APPEAL IS NOT SO DISPOSED OF WITHIN THE PERIOD ALLOWED UNDER THE FIRST PROVISO OR THE P ERIOD OR PERIODS EXTENDED OR ALLOWED UNDER THE SECOND PROVIS O, WHICH SHALL NOT, IN ANY CASE, EXCEED THREE HUNDRED AND SI XTY-FIVE DAYS, THE ORDER OF STAY SHALL STAND VACATED AFTER THE EXP IRY OF SUCH PERIOD OR PERIODS, EVEN IF THE DELAY IN DISPOSING O F THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE.]] (2B) THE COST OF ANY APPEAL TO THE APPELLATE TRIBUN AL SHALL BE AT THE DISCRETION OF THAT TRIBUNAL. HENCE, THE MISCELLANEOUS APPLICATION FILED AFTER T HE EXPIRY OF LIMITATION IS NOT MAINTAINABLE AND LIABLE TO BE DISMISSED. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DI SMISSED. IN ORDER PRONOUNCED IN THE OPEN COURT ON 27/12/201 7 SD/- SD/- FOE FLAG ;KNO FOT; IKWY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER M.A. NO. 60/JP/2017 M/S SHAKUN ADVERTISING PVT. LTD. VS. DCIT, JAIPUR 7 TK;IQJ@ JAIPUR FNUKAD@ DATED:- 27/12/2017. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE DCIT, CIRCLE-2, JAIPUR.. 2. IZR;FKHZ@ THE RESPONDENT- M/S SHAKUN ADVERTISING PVT. LTD. B- 3, GIRIRAJ MANSION, 1 ST FLOOR, NEW COLONY, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A. NO. 60/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR