M/s. Arati Engineering & Construction Co., Hooghly V. ITO, Ward - 1(2), Hooghly, Hooghly

MA 82/KOL/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7081 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 11-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MIRAJ D SHAH LD
• Keywords: Period of limitation
• Section: 2

Judgement Text

INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JM & SHRI DR. ARJUN LAL SAINI , A M M.A. NO . 82/KOL/2018 [IN I.T A NO. 2152/KOL/2014 A.Y 2006 - 07] M/S. A RATI ENGINEERING VS. INCOME TAX OFFICER & CONSTRUCTION CO. WARD 1(2), HOOGHLY PAN: AALFA 8525H [ APPLICANT ] [ RESPON DENT ] APPLICANT BY : SHRI MIRAJ D.SHAH, LD.AR RESPONDENT BY : SHRI SALLONG YADEN, ADDL. CIT, DR DATE OF HEARING : 15 - 06 - 2018 DATE OF PRONOUNCEMENT : 29 - 08 - 2018 ORDER SHRI S.S.VISWANETHRA RAVI, JM BY T H IS MISCELLANEOUS APPLICATION FILED U/S. 254(2) OF THE ACT THE APPLICANT ASSESSEE INTENDS TO RECALL THE EX PARTE ORDER DT. 17 - 03 - 2017 PASSED IN ITA NO. 2152/KOL/2014 FOR THE A.Y 2006 - 07. 2. BEFORE US THE LD.AR SUB MITS THAT THIS TRIBUNAL PASSED THE SAID EX PARTE ORDER FOR NON APPEARANCE OF ASSESSE ON 17 - 03 - 2017. THE ASSESSEE DID NOT RECEIVE COPY OF THE ORDER DT. 17 - 03 - 2017 FROM THE REGISTRY. THE ASSESSE OBTAINED THE CERTIFIED COPY OF SAID EX PARTE ORDER ONLY ON 15 - 02 - 2018. IMMEDIATELY, THEREAFTER, THE ASSESSE FILED THIS MISC. APPLICATION. THE REGISTRY RAISED AN OBJECTION THE MISCELLANEOUS APPLICATION IS BARRED BY LIMITATION AND NO PETITION FILED TO CONDONE THE DELAY OF 223 DAYS. THE LD.AR SUBMITS THAT SUB - SECTION 2 OF SECTION 254 OF THE ACT PROVIDES LIMITATION OF SIX MONTHS TO FILE THE MISC. APPLICATION FROM THE DATE OF RECEIPT OF THE ORDER AND AS THERE WAS NO ORDER RECEIVED FROM THE REGISTRY, THE DELAY OF 223 DAYS IN FILING THE MISC. APPLICATION IS NEITHER WANTON NOR ACCEPTED. FURTHER REFERRED TO RULE 24 & 25 OF INCOME TAX APPELLATE TRIBUNAL RULES, 1963 AND SUBMITTED THAT THE SAID RULES ARE INDEPENDENT TO SECTION 254 OF THE ACT AND NO LIMITATION PRESCRIBED THEREIN AND NO PETITION M.A. NO . 82 /K/18 M/S. ARATI ENGINEERING & CONSTRUCTION CO. 2 TO CONDONE THE DELAY IS REQUIRED T O BE FILED. HE SUBMITS THAT IN ACCORDANCE WITH RULE 24, ITAT, IN ABSENCE OF APPELLANT/ASSESSEE, HAS TO DECIDE THE APPEAL(S) ON MERITS AND AS THERE WAS NO ORDER ON MERIT, THE EX PARTE ORDER FOR NON - APPEARANCE OF ASSESSE IS LIABLE TO BE SET ASIDE AND PLACE D RELIANCE ON THE DECISION OF THE HONBLE HIGH COURT OF DELHI IN THE CASE OF OM PRAKASH SANGWAN IN ITA 625/2018 & CM APPL 21436/2018, ITA 626/2018 & CM APPL 21437/2018, COPY OF THE SAME IS ON RECORD. 3. ON THE OTHER HAND, RELIED ON THE SAID ORDER OF THE T RIBUNAL. 4. HEARD BOTH THE PARTIES AND PERUSED THE RECORD. THE ARGUMENTS ON BEHALF OF ASSESSE BEFORE THE HONBLE HIGH COURT OF DELHI IN THE CASE OF OM PRAKASH SANGWAN WAS THAT, THE PERIOD OF LIMITATION AS PRESCRIBED IN SUB - SECTION 2 OF SECTION 254 OF THE ACT IS APPLICABLE ONLY WHEN THE TRIBUNAL PROCEEDS TO RECTIFY ERROR IN ITS ORDER AND PLACED RELIANCE ON TWO DECISIONS OF HONBLE HIGH COURT OF ALLAHABAD AND HIGH COURT OF GUJARAT. THE HONBLE HIGH COURT OF DELHI WAS PLEASED TO OBSERVE THAT AN AMENDMENT TO S ECTION 254(2) OF THE ACT TO CURTAIL THE EXTENDED PERIOD OF FOUR YEARS TO APPROACH TRIBUNAL BY EITHER OF PARITIES FOR A RECTIFICATION. IT IS NOTED ON A CAREFUL READING OF THE DECISION OF HONBLE HIGH COURT, THAT NO FINDING WAS ACCORDED REGARDING THE APPLICA BILITY OF SUB - SECTION 2 OF SECTION 254 OF THE ACT, BUT, HOWEVER, CONSIDERING THE SUBMISSIONS OF PARTIES THEREIN , HELD THAT THE TRIBUNAL HAS TO DECIDE THE APPEALS ON MERIT IN TERMS OF RULE 24 OF ITATS RULES R/W OTHER PROVISIONS OF THE ACT, FAILING WHICH , A MOUNTS EXCEEDING THE JURISDICTION AVAILABLE TO IT UNDER STATUTE. THE CONTENTION OF THE LD.AR IS THAT THE LIMITATION AS PROVIDED AS THE ASSESSE IS NOT BEFORE THIS TRIBUNAL TO RECTIFY ANY ERROR, BUT TO RECALL ANY EX PARTE ORDER WHICH HAS TO BE DECIDED U/R ULE 24 OF ITAT RULES 1963 AND FURTHER, SUB - SECTION 2 OF SECTION 254 OF THE ACT DOES NOT APPLY TO THE PRESENT CASE AS ASSESSE DID NOT RECEIVE ANY COPY OF THE EX PARTE ORDER FROM THE O/O THE REGISTRY, ITAT, KOLKATA. THE ASSESSE ON ITS OWN INTEREST CAME TO KNOW ABOUT SUCH M.A. NO . 82 /K/18 M/S. ARATI ENGINEERING & CONSTRUCTION CO. 3 ORDER AND OBTAINED THE CERTIFIED COPY AND IMMEDIATELY FILED THIS PRESENT MISC. APPLICATION. IN OUR OPINION, THAT THE ARGUMENTS OF LD.AR AND FACTS AND CIRCUMSTANCES IN THE CASE OF OM PRAKASH SANGWAN OF HONBLE HIGH COURT OF DELHI SUPRA AR E SIMILAR AND IDENTICAL. THE RELEVANT PORTION OF WHICH IS REPRODUCED HEREIN BELOW: - LEARNED COUNSEL FOR THE 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 ERRO R AND DECIDES TO PROCEED AHEAD TO RECTIFY IT AND PER SE DOES NOT INDICATE ANY LIMITATION WITHIN WHICH THE AGGRIEVED PARTY (ASSESSEE OR REVENUE) CAN APPROACH IT. HE RELIED UPON THE JUDGMENTS OF THE ALLAHABAD HIGH COURT TITLED VIJAY KUMAR RUIA V. COMMISSION ER OF INCOME TAX [2011] 15 TAXMANN.COM (ALLAHABAD) AND GUJARAT HIGH COURT TITLED LILADHAR T KHUSHLANI VS. COMMISSIONER OF CUSTOMS TAX APPEAL NO.915 OF2016 DELIVERED ON 25.01.2017 FOR THIS PURPOSE. THIS COURT IS OF THE OPINION THAT THOSE JUDGMENTS CANNOT AF FORD 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 OF LITIGANTS TO APPROACH THE IT AT 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. 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 IT AT HAS TO DECIDE THE APPEALS OR MATTERS BEFORE 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 APPEA L MERELY FOR NON - PROSECUTION. IN THE GIVEN CIRCUMSTANCES AND KEEPING IN VIEW THE FACT 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 APPEALS 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 THIR TY DAYS FROM TODAY. RESPECTFULLY FOLLOWING THE ABOVE, TAKING INTO CONSIDERATIONS THE FACTS AND CIRCUMSTANCES OF THE CASE, SUBMISSIONS OF THE LD. AR AND IN THE INTEREST OF JUSTICE, WE DEEM IT FIT AND PROPER TO RECALL THE SAID EX PARTE ORDER DT 17 - 03 - 2017. REGISTRY IS DIRECTED TO FIX THE CASE AFRESH BY ISSUING NOTICES TO BOTH THE PARTIES. 3. IN THE RESULT, THE M ISC. APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 - 08 - 2018 SD/ - SD/ - DR. ARJUN LAL SAINI S.S.VISWANETHRA RAVI ACCOUNTAN T MEMBER JUDICIAL MEMBER DATED 29 - 08 - 2018 M.A. NO . 82 /K/18 M/S. ARATI ENGINEERING & CONSTRUCTION CO. 4 COPY OF THE ORDER FORWARDED TO: 1. APPLICANT /ASSESSEE: M/S. ARATI ENGINEERING & CONSTRUCTION CO.1A, BUROBIBI LANE, P.O SERAMPORE, DIST: HOOGHLY, PIN 712201(WB). 2 RESPONDENT /DEPARTMENT: THE ITO, W 1(2), HOOGHLY - 712201 (WB). 3. CIT, 4. CIT(A), 5. DR, KOLKATA BENCHES, KOLKATA **PP/SPS TRU E COPY BY ORDER, SR.PS, H.O.O ITAT,KOL