Indian Public Travels, Hyderabad V. Income Tax Officer, Ward-7(2), Hyderabad

MA 87/Hyd/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5692 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 12-01-2018
• Assessment Year: 2007-2008
• Appeal Filed On: 11-12-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR DIVYA K J
• Keywords: Search and seizure; Period of limitation; Time period of passing order
• Section: 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B, HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER M.A. NO. 87/HYD/2017 (IN I.T.A. NO. 1627/HYD/2012) ASSESSMENT YEAR: 2007-08 INDIA PUBLIC TRAVELS, HYDERABAD [PAN: AAAFI9005P] VS THE INCOME TAX OFFICER, WARD-7(2), HYDERABAD (APPLICANT) (RESPONDENT) FOR ASSESSEE : SHRI SAMUEL NAGADESI, AR FOR REVENUE : SMT. DR. DIVYA, K.J. DR DATE OF HEARING : 12-01-2018 DATE OF PRONOUNCEMENT : 12-01-2018 O R D E R PER B. RAMAKOTAIAH, A.M. : THIS IS A MISCELLANEOUS APPLICATION, FILED BY ASSES SEE AGAINST THE APPEAL IN ITA NO. 1627/HYD/2012, DATED 31-05-2017 . THE APPEAL WAS CONSIDERED EX-PARTE ON MERITS AS NONE APPEARED IN- SPITE OF GIVING VARIOUS NOTICES. ASSESSEE HAS NOW P REFERRED THE PRESENT MISCELLANEOUS APPLICATION SEEKING RECALL OF TH E EX-PARTE ORDER U/S 254(2) RESTORING THE APPEAL FOR DISPOSAL O N MERITS. 2. WE NOTICED THAT THE MISCELLANEOUS APPLICATION IS NOT MAINTAINABLE AS IT IS FILED ON 09-12-2017, WHEREAS TH E IMPUGNED ORDER WAS PASSED ON 31-05-2017. AS PER THE PROVISIO NS OF SECTION 254(2) OF THE INCOME TAX ACT, 1961 [ACT], THE TIME LIM IT PRESCRIBED FOR FILING A MISCELLANEOUS APPLICATION, WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM RECORD, IS WITHIN SIX MONTHS F ROM THE END 2 M.A. NO. 87/HYD/2017 OF THE MONTH IN THE ORDER WAS PASSED. ASSESSEE STATE S IN THE PRESENT MISCELLANEOUS APPLICATION ITSELF THAT THE ORDER OF THE HON'BLE TRIBUNAL WAS RECEIVED BY ASSESSEE ON 24-06- 2017 AND THE PETITION IS WITHIN THE TIME LIMIT PRESCRIBED U/S. 254(2) OF THE ACT. ASSESSEE IS COUNTING THE PERIOD FROM THE DATE OF SERVI CE, WHEREAS THE STATUTE PRESCRIBES SIX MONTHS PERIOD FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED. SINCE THE ORDER WAS PASSED ON 31-05-2017, ASSESSEE HAS TIME LIMIT TO FILE THE PETITION ON OR BEFORE 30-11-2017, THE APPLICATION FILED ON 09- 12-2017 IS BARRED BY LIMITATION. 3. THE CO-ORDINATE BENCH OF ITAT IN M.A. NO. 05/HYD/ 2017, IN THE CASE OF SRINIVAS SASHIDHAR CHAGANTY VS. ITO (ITA NO. 1420/HYD/2015) DT. 12-07-2017 HAS DECIDED THIS ISSUE AS UNDER: 2. AT THE OUTSET IT MAY BE NOTICED THAT AS PER THE PRESENT PRACTICE FOLLOWED BY THE TRIBUNAL, THE ORDER WAS PRONOUNCED ON 21.06. 2016 IN THE OPEN COURT AND THE TIME LIMIT, RECKONED FROM THE END OF THE MONTH IN W HICH THE ORDER WAS PASSED, IS SIX MONTHS FOR SEEKING RECALL I.E., PARTIES ARE ENTITLE D TO SEEK RECTIFICATION OF THE SAID ORDER WITHIN SIX MONTHS U/S 254(2) OF THE INCOME TAX ACT, 1961, AS AMENDED W.E.F. 01.06.2016 WHICH READS AS UNDER:- 254 (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PA SSED, WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD, AM END ANY ORDER PASSED BY IT UNDER SUB-SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSE E OR AS THE ASSESSING OFFICER. 3. THE ABOVEMENTIONED PROVISION EMPOWERS THE TRIBUN AL TO SUO MOTO RECTIFY ITS MISTAKE OR ENABLE THE PARTIES TO THE ORDER TO SEEK RECTIFICATION WITHIN THE PERIOD OF LIMITATION I.E., SIX MONTHS FROM THE END OF THE MO NTH IN WHICH THE ORDER WAS PASSED. IN THE INSTANT CASE, THE ORDER WAS PASSED / PRONOUN CED ON 21.06.2016 AND FROM THE END OF THE MONTH, THE PERIOD OF SIX MONTHS EXPIRES ON 31.12.2016. ASSESSEE FILED THE PRESENT MISCELLANEOUS APPLICATION (MA) ON 20.01.201 7 ON THE GROUND THAT THE ORDER WAS SERVED UPON THE ASSESSEE ON 05.07.2016; RECKONI NG THE TIME LIMIT FROM THE END OF THE MONTH OF JULY, THE MA FILED BY THE ASSESSEE IS WITHIN THE PERIOD OF LIMITATION. THE CASE OF THE ASSESSEE IS THAT THE PROCEDURES AS WELL AS THE PERIOD OF LIMITATION SET OUT IN THE ACT ARE MAINLY INTENDED TO SUBSERVE THE INTEREST OF THE PARTIES AND IN TAX MATTERS IT CANNOT BE CONSIDERED AS LIS BETWEEN IN T WO PARTIES BUT ONLY TAX ADJUSTMENT, AS HELD BY THE HONBLE MADRAS HIGH COURT IN THE CAS E OF CIT VS. INDIAN EXPRESS (MADURAI) PVT. LTD (140 ITR 705 AT 722). SUBSTANTI AL JUSTICE HAS TO BE GIVEN 3 M.A. NO. 87/HYD/2017 PARAMOUNT IMPORTANCE AND IN THIS CASE, THE TRIBUNAL HAS OVERLOOKED THE MATERIAL PAPERS FILED AND THEREFORE, THE ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY TO PUT FORTH ITS GRIEVANCE BY RECALLING THE ORDER PASSED B Y THE TRIBUNAL. ACCORDINGLY, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE EXPRESS ION ORDER WAS PASSED HAS TO BE UNDERSTOOD AS DATE OF RECEIPT OF THE ORDER BY THE PARTIES. LD COUNSEL FOR THE ASSESSEE FILED BRIEF WRITTEN SUBMISSIONS INCORPORAT ING THE PROVISIONS OF SECTIONS 254(2), 254(3) OF THE ACT AND RULES 34(1) AND 35 OF THE ITA T RULES, 1963 TO SUBMIT THAT IT IS MANDATORY TO SERVE A COPY OF THE ORDER ON THE PARTI ES AND HENCE, THE TIME LIMIT STARTS ONLY FROM THE DATE OF RECEIPT OF THE ORDER. HE R EFERRED TO THE ORDERS OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. SUDHIR CHOU DHRIE: RAJIV CHOUDHRIE [2005] 278 ITR 490 WHEREIN, THE COURT OBSERVED THAT PRONOUNCEM ENT OF THE ORDER IS MANDATORY SO AS TO FACILITATE THE PARTIES TO LAWFULLY KNOW TH E RESULT AS WELL AS TO AVOID UNNECESSARY DELAY IN COMMUNICATION OF THE ORDERS. HE, FURTHER, RELIED UPON THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CA SE OF S.P. BALASUBRAHMANYAM VS. ACIT [2017] 152 DTR 25 (MAD.), AT PAGE 34 WHEREIN THE COURT REFERRED TO THE PROVISIONS OF SECTION 12 OF THE LIMITATION ACT, WHI CH SPEAKS OF THE TIME TAKEN FOR OBTAINING THE COPY OF THE DECREE OR ORDER WHILE COM PUTING THE PERIOD OF LIMITATION. IN PARA 21 OF THE JUDGMENT, THE HONBLE MADRAS HIGH CO URT OBSERVED AS UNDER:- 21. EVEN TAKING FOR GRANTED THAT THE JUDGMENTS OF THE APEX COURT ARE APPLICABLE TO THE CASE ON HAND AND THAT THE PERIOD OF LIMITATION OF FOUR YEARS FOR FILING AN APPLICATION FOR RECALLING AN OR DER FILED U/S 254(2) OF THE IT ACT, 1961, HAS TO BE COMPUTED FROM THE DATE OF SERVICE OF THE ORDER, AVERMENTS MADE IN THE SAID PETITION, FILED I N THE YEAR 2015, ARE BEREFT OF DETAILS, AS TO WHEN THE ORDER WAS SERVED IN THE ADDRESS, WHERE THE OFFICE OF THE APPELLANT IS SITUATED. ORDER OF THE TRIBUNAL IN ITA NO.638/MAD/2011, HAS BEEN PASSED ON 18 TH JULY, 2011, WHEREAS, THE APPELLANT HAS FILED THE PETITION ON 24 TH JULY, 2015, WHICH IS BEYOND FOUR YEARS FROM THE DATE OF PASSING OF THE ORDER BY THE TRIBUNAL ON 18 TH JULY, 2011. THOUGH MR. JA. BALACHANDER, LD COUNSEL FOR T HE APPELLANT SUBMITTED THAT IN THE NORMAL COURSE, SERVICE OF ORD ER, ON THE PARTY WOULD TAKE SOME TIME, AND THEREFORE THE MISCELLANEOUS APP LICATION FILED ON 24 TH JULY, 2015 WAS JUST SIX DAYS EXCEEDING THE FOUR YEA RS PERIOD FROM THE DATE OF PASSING THE ORDER AND THEREFORE, THE TRIBUN AL OUGHT TO HAVE CONSIDERED THE TIME TAKEN FOR SERVICE OF THE IMPUGN ED ORDER AND ALLOWED THE APPLICATION FOR RECTIFICATION, WE ARE NOT INCLI NED TO ACCEPTE THE SAID CONTENTION, FOR THE REASON THAT, THERE ARE NO AVERM ENTS IN THE MISCELLANEOUS PETITION, AS TO WHEN THE ORDER WAS SE RVED ON THE APPELLANT. 4. FROM THE ABOVE OBSERVATIONS, LD COUNSEL FOR THE ASSESSEE SUBMITS THAT WHILE COMPUTING THE PERIOD OF LIMITATION U/S 254(2) OF TH E ACT, THE TIME TAKEN FOR OBTAINING THE COPY OF THE ORDER SHOULD ALSO BE CONSIDERED. 5. ON THE OTHER HAND, LD DR SUBMITTED THAT THE EXPR ESSION PASSED, INITIATED AND SERVED / RECEIVED ARE NOT INTERCHANGEABLE; TH E LEGISLATURE, IN ITS WISDOM, USED APPROPRIATE PHRASEOLOGY WITH THE CLEAR INTENTION BE FITTING THE OCCASION. FOR EXAMPLE, IN SECTION 275(1)(A) OF THE ACT, TIME LIMIT WAS SI X MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER RECEIVED BY THE PRINCIPAL CHIEF COMMISSIONER, CHIEF COMMISSIONER OR COMMISSIONER, WHICHEVER PERIOD EXPIRES LATER. I N SUB-CLAUSE (B) THEREOF, THE EXPRESSION USED IS AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH SUCH ORDER OF REVISION IS PASSED. HOWEVER, IN SUB -CLAUSE (C) THEREOF, THE EXPRESSION 4 M.A. NO. 87/HYD/2017 USED IS THE PERIOD OF SIX MONTHS SHALL BE COUNTED FROM THE END OF THE MONTH IN WHICH THE ACTION IS INITIATED. THUS, THE LEGISLATURE WA S CONSCIOUS OF THE DIFFERENCE BETWEEN THE DATE OF RECEIPT OF THE ORDER AND DATE OF PAS SING THE ORDER. IN SECTION 254(2) OF THE ACT, THE LEGISLATURE REFERRED TO ORDER PASSED AND THEREFORE, THE ASSESSEE SHOULD NOT BE GIVEN BENEFIT OF THE PERIOD OF LIMITATION RE CKONED FROM THE DATE OF RECEIPT OF THE ORDER. HE, THUS, STRONGLY SUBMITTED THAT THE MA FILED BY THE ASSESSEE IS BEYOND THE PERIOD OF LIMITATION. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE RECORD. SECTION 254(2) OF THE ACT REFERS TO THE PERIOD OF L IMITATION RECKONING FROM THE END OF THE MONTH IN WHICH THE ORDER IS PASSED AND NOT FR OM THE DATE OF RECEIPT OF THE ORDER. AS RIGHTLY POINTED OUT BY THE LD DR, THE E XPRESSIONS PASSED INITIATED AND SERVED / RECEIVED ARE NOT INTERCHANGEABLE AND THE LEGISLATURE IN ITS WISDOM EXPRESSLY USED THE PHRASEOLOGY DEPENDING ON THE INTENTION. I N THE INSTANT CASE, THE EXPRESSION PASSED CANNOT BE STRETCHED TO MEAN THAT THE PERIO D OF LIMITATION SHOULD BE RECKONED FROM THE DATE OF RECEIPT OF THE ORDER. 7. EVEN IF A LIBERAL VIEW HAS TO BE TAKEN, IT CAN B E CONSIDERED AS THE DATE OF UPLOADING OF THE ORDER. ORDINARILY ANYTHING WHICH I S UPLOADED IN THE PUBLIC DOMAIN CAN BE ACCESSED BY THE PUBLIC AT LARGE AND EVEN THE ASS ESSEE WOULD HAVE ACCESS TO THE ORDER AND SUCH A DATE ALWAYS BE TREATED AS THE SERV ICE OF THE ORDER. IN THE INSTANT CASE, THE NOTING OF THE SR. PRIVATE SECRETARY IN TH E BOOK INDICATE THAT THE ORDER WAS UPLOADED ON 21.06.2016. THE JUDGMENT OF THE HONBLE MADRAS HIGH COURT, THOUGH REFERRED TO THE LATEST PROVISIONS, CANNOT BE TAKEN AID OF INASMUCH AS THE HONBLE HIGH COURT WAS DEALING WITH THE APPLICATION FILED IN 201 5, WHICH IS A DATE ANTERIOR TO THE INTRODUCTION OF SIX MONTHS LIMITATION PERIOD. EVEN OTHERWISE, THE OBSERVATIONS MADE THEREIN CANNOT BE EQUATED TO A FINDING OR ORDER SIN CE, THE COURT WAS NOT CONCERNED WITH THE LATEST PROVISIONS OF THE ACT. FURTHER, TH E HONBLE HIGH COURT MENTIONED THAT EVEN TAKING FOR GRANTED THAT THE JUDGMENTS OF THE APEX COURT ARE APPLICABLE TO THE CASE ON HAND THE DATE OF SERVICE OF THE ORDER WAS N OT EVEN MENTIONED AND THE ASSESSEE HAS NOT APPLIED DUE DILIGENCE AND CAUTION ; IN OTHER WORDS, THE COURT CONCLUDED THAT THE ASSESSEE HAS NOT FOLLOWED DUE DI LIGENCE. IT WAS ALSO REFERRED THAT EVEN THE DATE OF ORDER IS NOT PLACED ON RECORD. IN SUCH AN EVENT, WE ARE AFRAID THAT WE HAVE NO AUTHORITY TO INTERPRET THE EXPRESSION P ASSED AS BEING AKIN TO THE RECEIPT OF THE ORDER. SINCE, THE MA IS FILED BEYOND THE P ERIOD OF LIMITATION EVEN RECKONED FROM THE DATE OF UPLOADING IN WEBSITE, WE HAVE NO O THER ALTERNATIVE EXCEPT TO DISMISS THE APPLICATION AS BEING BARRED BY LIMITATION. 4. RESPECTFULLY FOLLOWING THE SAME, WE HOLD THAT THE PR ESENT APPLICATION IS BARRED BY LIMITATION. IN THE RESULT, MISC ELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JANUARY, 2018 UPON CONCLUSION OF HEARING SD/- SD/- ( D. MANMOHAN) (B. RAMAKOTAIAH) VICE PRESIDENT ACCOUNTANT MEMBE R HYDERABAD, DATED 12 TH JANUARY, 2018 TNMM 5 M.A. NO. 87/HYD/2017 COPY TO : 1. M/S. INDIA PUBLIC TRAVELS, HYDERABAD. C/O. SAMUE L NAGADESI, CHARTERED ACCOUNTANTS, 302, GOLDEN GREEN APARTMENTS, ERRAM MANZIL COLONY, PUNJAGUTTA, HYDERA BAD. 2.THE INCOME TAX OFFICER, WARD-7(2), HYDERABAD. 3. CIT (APPEALS)-VI, HYDERABAD. 4. CIT-VI, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.