Appeal details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 3950 (ITAT-VISAKHAPATNAM)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 3 month(s) 29 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
02-05-2019
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
DB
Assessment Year
2009-2010
Appeal Filed On
03-01-2018
Judgement Text
M.A.NOS . 03 - 10 /VIZ/2018 ( ARUNACHALAM MANICK A VEL & ANO. ) 1 IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER M.A.NOS. 03 TO 0 9 /VIZ/2018 (ARISING OUT OF I.T.A.NO S . 168 TO 174 /V IZ / 2014 ) ( ASSESSMENT YEAR S : 2004 - 05 TO 2010 - 11 ) ARUNACHALAM MANICKAVEL, PROP : BHARATHI SOAP WORKS, 1 ST LINE, INDIRA GANDHI NAGAR, NALLACHERUVU, GUNTUR. VS. DCIT, CENTRAL CIRCLE, VIJAYAWADA. [PAN: ACFPA 3107 K ] ( APPELLANT) ( RESPONDENT ) M.A.NO.10/VIZ/2018 I . T .A.NO. 143 /V IZ / 2014 ( ASSESSMENT YEAR : 2010 - 11 ) SMT. PARIMALA MANICKAVEL, DIRECTOR OF BHARATHI COTTON & GINNING MILL (P) LTD., 11/25, GORANTLA, AMARAVATHI ROAD, GUNTUR. VS. DCIT , CENTRAL CIRCLE, VIJAYA WADA. [ PAN: AHWPM 9939 P ] (APPELLANT) (RESPONDENT) APP ELLANT S BY : SHRI G.V.N. HARI - ADVOCATE RESPONDENT BY : SMT. SUMAN MALIK SR. DR DATE OF H EARING : 09 / 11 /201 8 DATE OF P RONOUNCEMENT : 16 / 11 /201 8 O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : BY FILING THESE MISC. APPLICATIONS, BOTH THE ASSESSEES SEEK RECALL OF THE COMBINED EXPARTE ORDER PASSED BY THIS TRIBUNAL IN I.T.A.NOS. 168 TO 174 & 143/VIZ/2014 , DATED 21/03/2017 . M.A.NOS . 03 - 10 /VIZ/2018 ( ARUNACHALAM MANICK A VEL & ANO. ) 2 2. BY FILING A N APPLICATION UNDER RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULE S , 1963 , LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT ON THE DATE OF HE A RING ON 21/03/2017, THE COUNSEL FOR THE ASSESSEE FILED AN APPLICATION DATED 16/03/2017 FOR ADJOURNMENT BY STATING THAT HE WOULD NOT BE ABLE TO ATTEND THE HEARING ON 21/03/2017 DUE TO HEAVY WORK PRESSURE IN INCOME TAX DEPARTMENT. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT DUE TO NON - APPEARANCE OF THE COUNSEL, ASSESSEE SHOULD NOT SUFFER AND SUBMIT THAT EXPARTE ORDER DATED 21/03/2017 MAY BE RECALLED. THE LD. COUNSEL FOR THE ASSESSEE MR.HARI FURTHER SUBMITTED THAT THE COUNSEL , WHO FILED VAKALATNAMA EARLIER AND SOUGHT ADJOURNMENT , HAS BEEN CHANGED . N OW , HE FILED VAKALAT NAMA THEREFORE SUBMIT TED THAT WHEN THE DATE IS GIVEN, HE IS READY TO APPEAR BEFORE THE TRIBUNAL. 3 . LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE MISC. APPLICATION S FILED BY THE ASSESSEE S UNDER RULE 24 OF THE ITAT RULES, 1963 DO ES NOT STIPULATE ANY TIME LIMIT AND THIS BEING EXPARTE ORDER, IT HAS TO BE RECALLED. TO SUPPORT HIS ARGUMENT , RELI ED ON THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF OM PRAKASH SANGWAN VS. ITO [(2018) 94 TAXMANN.COM 394 (DELHI)] . M.A.NOS . 03 - 10 /VIZ/2018 ( ARUNACHALAM MANICK A VEL & ANO. ) 3 4 . ON THE OTHER HAN D, LD. DEPARTMENTAL REPRESENTATIVE STRONGLY OPPOSED FOR RECALLING OF THE ORDER. 5 . WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON RECORD . 6 . THI S BATCH OF APPEAL S FILED BY THE ASSESSEES ARE DISMISSED EXPARTE BY ORDER DATED 21 /03/2017 . SUBSEQUENTLY , THE ASSESSEE HAS FILED MISC. APPLICATION ON 0 6 /01/2018 WHICH IS BEYOND THE TIME LIMIT PRESCRIBED UNDER SECTION 254(2) OF THE ACT. THE ASSESSEE FILED A N APPLICATION BEFORE US UNDER RULE 24 OF THE ITAT RULES, 1963 AND SUBMITTED THAT EXPARTE OR DER MAY BE RECALLED. IN THIS APPLICATION , IT WAS STATED THAT THE ASSESSEES EARLIER COUNSEL NOT ATTEND ED BEFORE THE TRIBUNAL DUE TO HEAVY PRESSURE WORK IN THE INCOME TAX DEPARTMENT. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSEE HAS C HANGED HIS EARLIER COUNSEL AND THE PRESENT COUNSEL IS READY TO APPEAR, THE DATE ON WHICH CASE IS POSED FOR HEARING. BY CONSIDERING THE APPLICATION FILED BY THE ASSESSEE AND ALSO CONSIDERING THE ARG U MENT OF THE LD. COUNSEL FOR THE ASSESSEE, WE ARE OF THE O PINION THAT THERE IS A SUFFICIENT CAUSE FOR N OT TO APPEAR IN THIS APPEAL WHEN IT WAS POSED. WE ALSO FIND THAT THE MISC. APPLICATION FILED BY THE ASSESSEE IS AFTER 98 DAYS OF PASSING OF M.A.NOS . 03 - 10 /VIZ/2018 ( ARUNACHALAM MANICK A VEL & ANO. ) 4 THE EXPARTE ORDER, IS A REASONABLE PERIOD, IN WHICH THE ASSESSEE APPROA CH THE TRIBUNAL. IN OUR OPINION, THIS BEING A N EXPARTE ORDER, ASSESSEE SHOULD BE GIVEN OPPORTUNITY AND THE ORDER HAS TO BE PASSED ON THE MERITS OF THE CASE . IN THIS CASE, NO MERITS HAVE BEEN CONSIDERED, SIMPLY DISMISSED THE APPEAL. IN OUR OPINION, NOT O NLY IN THE INTEREST OF JUSTICE AND ALSO ON THE GROUNDS OF PRINCIPLES OF NATURAL JUSTICE, THESE APPEALS DESERVE TO BE RECALLED. THE HON'BLE DELHI HIGH COURT IN THE CASE OF OM PRAKASH SANGWAN (SUPRA) HAS HELD THAT AS PER RULE 24 OF THE ITAT RULES, 1963 , THE ITAT HAS TO DECIDE THE APPEALS OR MATTERS BEFORE IT ON THE MERITS. IN THESE CIRCUMSTANCES , THE ITAT FAILED TO DO SO, IMPLIES THAT IT EXCEEDED ITS JURISDICTION AND INSTEAD OF DECIDING ON THE MERITS, REJECTED THE APPEAL MERELY FOR NON - PROSE C UTION. IN THE G IVEN CIRCUMSTANCES AND KEEPING IN VIEW OF THE FACT THAT RULE 25 DOES NOT STIPULATE ANY PERIOD OF LIMITATION , WITHIN WHICH THE AGGRIEVED PARTY CAN APPROACH THE TRIBUNAL , AND DIRECTED THE ASSESSEE TO APPROACH THE TRIBUNAL , IN SUCH AN EVENT FURTHER DIRECTED T HE ITAT TO PASS ORDERS. THE HON'BLE DELI HIGH COURT HAS ALSO CONSIDERED SECTION 254(2) OF THE IT ACT AND OBSERVED THAT SECTION 254(2) OF THE ACT WAS ADVISABLY AMENDED TO CURTAIL EXTENDED PERIOD OF FOUR YEARS, WHICH HAD BEEN M.A.NOS . 03 - 10 /VIZ/2018 ( ARUNACHALAM MANICK A VEL & ANO. ) 5 PROVIDED TO EITHER CLASS OF LIT IGANTS TO APPROACH THE ITAT FOR RECTIFICATION. IN THIS CASE, THE ITAT DID NOT DECIDE THE APPEAL ON MERITS AS IT IS MANDATED TO BUT RATHER REJECTED FOR NON - PROSECUTION . IN THE PRESENT CASE ALSO, THE APPEALS FILED BY THE ASSESSEE S ARE DISMISSED FOR NON - PRO SECUTION. THE MISC. APPLICATIONS FILED BY THE ASSESSEES ARE ONLY RECALLING OF THE EXPARTE ORDER, IT IS NEITHER FOR RECTIFICATION NOR FOR ANY AMENDMENT. THEREFORE, UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE JUDGMENT OF THE HON'BLE DE LHI HIGH COURT IN THE CASE OF OM PRAKASH SANGWAN (SUPRA) IS SQUARELY APPLIES TO THE FACTS OF THE PRESENT CASE . THE RELEVANT PORTION OF THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF OM PRAKASH SANGWAN (SUPRA) IS EXTRACTED VERBATIM AS UNDER: - 1. MR. ASHOK MANCHANDA, COUNSEL FOR RESPONDENT ACCEPTS NOTICE. WITH THE CONSENT OF THE PARTIES, THE APPEALS WERE HEARD FINALLY. THE APPELLANT'S GRIEVANCE IS THAT THE ITAT VIDE ITS IMPUGNED ORDER REJECTED THE RECTIFICATION APPLICATION. THE ITAT'S ORDER DIS MISSING THE APPEAL WAS DATED 16 - 06 - 2016; HOWEVER, THE APPELLANT MOVED UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE 'ACT') BY AN APPLICATION ON 02 - 6 - 2017 WHICH WAS DISMISSED BY THE IMPUGNED ORDER. 2. LEARNED COUNSEL FOR T HE APPELLANT SOUGHT TO IMPRESS UPON THE COURT THAT THE PERIOD MENTIONED IN SECTION 254(2) OF THE ACT ONLY APPLIED WHEN THE TRIBUNAL NOTICES THE ERROR AND DECIDES TO PROCEED AHEAD TO RECTIFY IT AND PER SE DOES NOT INDICATE ANY LIMITATION WITHIN WHICH THE AG GRIEVED PARTY (ASSESSEE OR REVENUE) CAN APPROACH IT. HE RELIED UPON THE JUDGMENTS OF THE ALLAHABAD HIGH COURT TITLED VIJAY KUMAR RUIA V. CIT [2011] 334 ITR 38 AND GUJARAT HIGH COURT TITLED LILADHAR T KHUSHLANI V. CUSTOMS 2017 (351) ELT 36 THIS PURPOSE. THIS COURT IS OF THE OPINION THAT THOSE JUDGMENTS CANNOT AFFORD THE APPELLANT ANY COMFORT. SECTION 254(2) OF THE ACT WAS ADVISABLY AMENDED TO CURTAIL EXTENDED PERIOD OF FOUR YEARS WHICH HAD BEEN PROVIDED TO EITHER CLASS M.A.NOS . 03 - 10 /VIZ/2018 ( ARUNACHALAM MANICK A VEL & ANO. ) 6 OF LITIGANTS TO APPROACH THE ITAT FOR A RECTIFICATION. IN THIS CASE, THE COURT HAS CONSIDERED THE SUBMISSIONS OF THE PARTIES. IN THIS CASE, THE ITAT DID NOT DECIDE THE APPEAL ON THE MERITS AS IT IS MANDATED TO BUT RATHER REJECTED FOR NON - PROSECUTION. 3. RULE 24 OF THE INCOME TAX APPELLATE TRIBUNAL'S RULES AND THE OTHER PROVISIONS OF BOTH THE INCOME TAX ACT AND RULES INDICATE THAT THE ITAT HAS TO DECIDE THE APPEALS OR MATTERS BEFO RE IT ON THE MERITS. IN THESE CIRCUMSTANCES, THE ITAT'S FAILURE TO DO SO, IMPLIES THAT IT EXCEEDED ITS JURISDICTION AND INSTEAD OF DECIDING ON THE MERITS, REJECTED THE APPEAL MERELY FOR NON - PROSECUTION. IN THE GIVEN CIRCUMSTANCES AND KEEPING IN VIEW THE FA CT THAT RULE 25 DOES NOT STIPULATE ANY PERIOD OF LIMITATION WITHIN WHICH THE AGGRIEVED PARTY CAN APPROACH THE TRIBUNAL, IT IS OPEN TO THE APPELLANT TO APPROACH THE TRIBUNAL WITH A SUITABLE APPLICATION FOR RESTORATION OF THE APPEALS; IN SUCH EVENT, THE APPE ALS COULD BE CONSIDERED ON THEIR MERITS AND DECIDED IN ACCORDANCE WITH LAW AFTER HEARING BOTH THE PARTIES, PROVIDED, THE APPLICATION IS PRESENTED BEFORE THE ITAT WITHIN THIRTY DAYS FROM TODAY. APPEALS ARE DISPOSED OF IN THE ABOVE TERMS. 7 . LD. DEPARTMENT AL REPRESENTATIVE HAS NOT BROUGHT ANY DECISION OF THE JURISDICTIONAL HIGH COURT TO OUR NOTICE IN THIS SUBJECT MATTER. THEREFORE, RESPECTFULLY FOLL O WING THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT IN THE ABOVE REFERRED TO CASE, WE ALLOW THE MISC. APPL I CAT IONS FILED BY THE ASSESSEES AND RECALL THE EXPARTE ORDER DATED 21/03/2017 . THE REGISTRY IS DIRECTED TO POST THE APPEALS IN I . T . A . NOS. 168 TO 174 & 143/VIZ/2014 IN THE REGULAR COURSE OF HEARING . 8 . IN THE RESULT, ALL THE MISC. APPLICATIONS FILED BY THE ASSESSEE S ARE ALLOWED . O RDER PRONOUNCED IN THE OPEN COURT ON 16 TH NOVEMBER , 2018 . S D/ - SD/ - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER M.A.NOS . 03 - 10 /VIZ/2018 ( ARUNACHALAM MANICK A VEL & ANO. ) 7 VISAKHAPATNAM: DATED : 16 / 11 /201 8 VR /SPS COPY OF THE ORDER FORWARDED TO : - 1. THE APPELLANT A) SMT. PARIMALA MANICKAVEL, DIRECTOR OF BHARATHI COTTON & GINNING MILL (P) LTD., 11/25, GORANTLA, AMARAVATHI ROAD, GUNTUR. B) ARUNACHALAM MANICKA VEL, PROP : BHARATHI SOAP WORKS, 1ST LINE, INDIRA GANDHI NAGAR, NALLACHERUVU, GUNTUR. 2. THE RESPONDENT DCIT, CENTRAL CIRCLE, VIJAYAWADA. 3. THE CIT ( CENTRAL ) , HYDERABAD. 4 . THE CIT(A) , GUNTUR. 4 . DR, ITAT, VISAKHAPATNAM 6 . GUARD FILE BY ORDE R // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, VISAKHAPATNAM
