SUMERMAL PUKHRAJ SHANKLESHA, KALYAN V. ITO 3(4), MUMBAI

MA 733/MUM/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4316 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 14-12-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Assessee Lawyers: RAVINDRA POOJARI
• Keywords: Condonation of delay
• Section: 254(2)

Judgement Text

P A G E | 1 M.A. NO. 733/MUM/2018 A.Y. 2011 - 12 (ARISING OUT OF ITA NO. 7563/MUM/2016) SUMERMAL PUKHRAJ SHANKLESHA VS. ITO 3(4) IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, M UMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI RAVISH SOOD, JM M.A. NO. 733 /MUM/2018 (ARISING OUT OF ITA NO. 7563/MUM/2016 ) ( / ASSESSMENT YEAR:2011 - 12 ) SUMERMAL PUKHRAJ SHANKLESHA PROP. M/S M.M. SHANKLESHA JWELLERS, NARAYAN WADI, AAYAKAR BHAVAN, STATION ROAD, KALYAN (W) 421301 / VS. ITO 3 (4) RANI MANSION, 6 TH FLOOR, MURBAD ROAD, KALYAN 421301 ./ ./ PAN NO. AONPS9463C ( / APPLICANT) : ( / RESPONDENT ) / APPLICANT BY : SHRI RAVINDRA POOJARI, A.R / RESPONDENT BY : SHRI A.B. KOLI, D.R / DATE OF HEARING : 01.03.201 9 / DATE OF PRONOUNCEMENT : 1 3 .03.2019 / O R D E R PER RAVISH SOOD, JUDICIAL MEMBER: THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ON 14.12.2018 ARISES FROM THE ORDER PASSED BY THE TRIBUNAL IN THE CASE OF M/S SUMERMAL PUKHRAJ SHANKLESHA VS. ITO - 3(4) KALYAN IN ITA NO. 7563/MUM/2016; DATED 29.08.2017. 2. THE LD. AUTHORIZED REPR ESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE AT THE VERY OUTSET OF THE HEARING OF THE APPLICATION SUBMITTED P A G E | 2 M.A. NO. 733/MUM/2018 A.Y. 2011 - 12 (ARISING OUT OF ITA NO. 7563/MUM/2016) SUMERMAL PUKHRAJ SHANKLESHA VS. ITO 3(4) THAT THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE INVOLVED A DELAY , AS THE SAME HAD BEEN FILED BEYOND THE STIPULATED TIME PERIOD ENV ISAGED IN SUB - SECTION (2) TO SEC.254 OF THE INCOME TAX ACT, 1961 (FOR SHORT I . T ACT) FOR FILING OF THE SAME. THE LD. A.R REQUESTED THAT THE DELAY INVOLVED MAY BE CONDONED AND THE APPLICATION FILED BY THE ASSESSEE BE HEARD ON MERITS. IN SUPPORT OF HIS CON TENTION THAT AN APPLICATION FILED BEYOND THE STIPULATED TIME PERIOD UNDER SEC.254(2) COULD BE ENTERTAINED BY THE TRIBUNAL , RELIANCE WAS PLACED BY THE LD. A.R ON THE JUDGMENT OF THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF MUNI NAGA REDDY VS. ACIT, CIR CLE 6 (1), BANGALURU (2018) 96 TAXMAN.COM 230 (KAR) (COPY PLACED ON RECORD) 3. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) OBJECTED TO THE AFORESAID REQUEST OF THE ASSESSEE FOR CONDONING THE DELAY INVOLVED IN FILING OF THE MISCELLANEO US APPLICATION UNDER SEC.254(2) OF THE I . T ACT. IT WAS AVERRED BY THE LD. D.R THAT THE TRIBUNAL WAS NOT VESTED WITH ANY POWER TO ENTERTAIN AN APPLICATION FILED UNDER SEC. 254(2) BEYOND THE STIPULATED TIME PERIOD ENVISAGED IN THE SAID STATUTORY PROVISION. IN SUM AND SUBSTANCE, IT WAS THE CONTENTION OF THE LD. D.R THAT THE APPLICATION FILED BY THE ASSESSEE BEING BEYOND T HE STIPULATED TIME PERIOD WAS LIABLE TO BE REJECTED ON THE SAID COUNT ITSELF. 4. WE HAVE HEARD THE AUTHORIZED REPRE SENTATIVES FOR BOTH THE PARTIES AND PE RUSED THE AP PLICATION FILED BY THE ASSESSEE AND THE JUDICIAL PRONOUNCEMENT SO RELIED UPON BY THE LD. A .R . WE FIND THAT THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF MUNINAGA REDDY VS. ACIT, CIRCLE 6 (1), BANGALURU (2018) 96 TAXMAN.COM 230 (KAR) WHILE DELIBERATING ON THE APPLICATION THAT WAS FILED BY THE ASSESSEE SEEKING CONDONATION OF DELAY OF 4 MONTH S 10 DAYS IN FILING OF THE MISCELLANEOUS PETITION BEFORE THE TRIB UNAL, HAD OBSERVED AS UNDER: P A G E | 3 M.A. NO. 733/MUM/2018 A.Y. 2011 - 12 (ARISING OUT OF ITA NO. 7563/MUM/2016) SUMERMAL PUKHRAJ SHANKLESHA VS. ITO 3(4) THOUGH UNDER THE PROVISIONS OF SECTION 254 THE TRIBUNAL CANNOT GO BEYOND THE PROVISIONS OF THE SAID SECTION, THE FACT REMAINS THAT THE PETITIONER HAS SUBSTANTIA TED THAT INJUSTICE IS BEING DONE BY NOT FOLLOWING THE DIVISION BENCH DECISION OF THIS COURT. THEREFORE, IN ORDER TO DO SUBSTANTIAL JUSTICE, THE POWER UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA CAN CONDONE THE DELAY AS HELD BY THE DIVISION BENC H OF INSTANT COURT. O N A PERUSAL OF AFORES AID ORDER OF THE HONBLE HIGH COURT , IT CAN SAFELY BE GATHERED VIZ. (I ) THAT IT WAS OBSERVED BY THE HIGH COURT THAT THE TRIBUNAL CANNOT GO BEYOND THE PROVISIONS OF SEC.254 AND THEREIN CONDONE THE DELAY IN FILING OF A MISCELLANEOUS PETITION; (II) THAT THE DELAY WAS CONDONED BY THE HONBLE HIGH COURT BY EXERCISING THE POWER V ESTED WITH IT UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA; AND (III) THAT EVEN OTHERWISE THE DELAY WAS CONDONED FOR THE REASON THAT THE ORDER OF THE TRIBUNAL SUFFERED FROM A SERIOUS INFIRMITY , AS THE SAME HAD FAILED TO FOLLOW THE JUDGMENT OF A DIVISION BENCH OF THE JURISDICTIONAL HIGH COURT. 5. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION AND ARE OF THE CONSIDERED VIEW THAT AS THE AFOREMENTIONED JUDGMENT OF THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF MUNINAGA REDDY VS. ACIT, CIRCLE 6 (1), BAN GALURU (2018) 96 TAXMAN.COM 230 (KAR) IS DISTINGUISHABLE ON FACTS , THUS THE SAME WOULD NOT ASSIST THE CASE OF THE ASSESSEE BEFORE US. AS THE TRIBUNAL IS NOT VE STED WITH ANY POWER TO CONDONE THE DELAY INVOLVED IN FILING OF AN APPLICATION UNDER SEC.254( 2) OF THE I . T ACT, THEREFORE, ANY SUCH APPLICATION FILED BEYOND THE STIPULATED TIME PERIOD ENVISAGED IN THE SAID STATUTORY PROVISION HAS TO BE REJECTED. BEFORE PARTING, WE MAY HEREIN OBSERVE THAT THOUGH THE TRIBUNAL AS PER SUB - SECTI ON (5) TO SEC.253 OF THE I . T ACT , IS WELL WITHIN ITS JURISDICTI ON TO ADMIT AN APPEAL OR PERMIT THE FILING OF A MEMORANDUM OF CROSS OBJECTION AFTER THE EXPIRY O F THE RELEVANT PERIOD REFERRED IN SUB - SECTION (3) OR SUB - SECTION (4) OF SEC.253, IF IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD, P A G E | 4 M.A. NO. 733/MUM/2018 A.Y. 2011 - 12 (ARISING OUT OF ITA NO. 7563/MUM/2016) SUMERMAL PUKHRAJ SHANKLESHA VS. ITO 3(4) HOWEVER NO SUCH POWERS ARE VESTED WITH IT FOR CONDONING A DELAY INVOLVED IN FILING OF A MISCELLANEOUS APPLICATION UNDER SEC. 254(2) OF THE I . T ACT. WE THUS IN THE BACKDROP OF THE AFORESAID SETTLED POSITION OF LAW ARE CONSTRAINED TO DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE BEYOND THE STIPULATED TIME PERIOD ENVISAGED UNDER THE AFORESAID STATUTORY PROVISION. 6. THE M ISCELLANEOUS APPLICATION FILED BY THE ASSESSEE UNDER SUB - SECTION (2) TO SEC. 25 4 IS DISMISSED AS NOT MAINTAINABLE ON THE GROUND THAT THE SAME HAD BEEN FILED BEYOND THE STIPULATED TIME PERIOD CONTEMPLATED UNDER THE SAID STATUTORY PROVISION. ORDER PRONOUNCED IN THE OPEN COURT ON 1 3 . 03.2019 S D / - S D / - ( SHAMIM YAHYA ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 1 3 .03 .2019 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) P A G E | 5 M.A. NO. 733/MUM/2018 A.Y. 2011 - 12 (ARISING OUT OF ITA NO. 7563/MUM/2016) SUMERMAL PUKHRAJ SHANKLESHA VS. ITO 3(4) , / ITAT, MUMBAI