MUKUND LAL JAISANSARIA, Jaipur V. DCIT, JHUNJHUNU

MA 88/JPR/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6075 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 21-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order; Opportunity of being heard; Period of limitation

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M M.A. NO. 88/JP/2017 (ARISING OUT OF ITA NO. 720/JP/2014) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR: 2010-11 MUKUND LAL JAISANSARIA, NETAJI MARG, SARDARSAHAR, JHUNJHUNU. CUKE VS. D.C.I.T., CIRCLE- JHUNJHUNU, JHUNJHUNU. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AAWPJ 9622 K VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI RAJENDRA JAIN (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT. NEENA JEPH (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 05/01/2018 MN?KKS'K.KK DH RKJH[ K @ DATE OF PRONOUNCEMENT: 08/01/2018 VKNS'K @ ORDER PER: BHAGCHAND, A.M. THE ASSESSEE HAS FILED THE PRESENT MISC. APPLICATIO N ON 02/06/2017 AGAINST THE ORDER OF THE ITAT, JAIPUR BEN CH, JAIPUR DATED 24/08/2016 PASSED IN ITA NO. 720/JP/2014 FOR THE AS SESSMENT YEAR 2010-11. 2. IN THIS CASE, THE ASSESSEE FILED APPEAL VIDE ITA NO. 720/JP/2014 FOR THE ASSESSMENT YEAR 2010-11 AGAINST THE ORDER O F LEARNED CIT(A)- III, JAIPUR DATED 24/09/2014. THIS COORDINATE BENCH OF THE ITAT, JAIPUR M.A. NO. 88/JP/2017 MUKUND LAL JAISANSARIA VS DCIT 2 HAS DECIDED THE APPEAL IN ABSENCE OF THE ASSESSEE B Y APPLYING DECISION OF DELHI BENCH OF ITAT IN THE CASE OF CIT VS MULTIPLA N INDIA (P) LTD. (1991) 38 ITD 320 AND DISMISSED THE ASSESSEES APPE AL. 3. THE ASSESSEE FILED THIS MISC. APPLICATION AND EXP LAINED THE REASONS AS TO WHY THE HEARING OF APPEAL ON 24/08/20 16 COULD NOT BE ATTENDED, WHICH IS REPRODUCED AS UNDER: (I) THAT THE APPLICATION FOR ADJOURNMENT WAS SEND T HROUGH SPEED POST IN THE OFFICE OF HONBLE ITAT AND WE ARE UNDER BONA FIDE BELIEF THAT THE CASE MAY BE ADJOURNED FOR THE NEXT DATE OF HEARING. FURTHER WE HAVE ALSO FILED THE DETAILED WR ITTEN SUBMISSION AND PAPER BOOK BEFORE THE HONBLE BENCH AND AS SUCH DISMISSAL OF APPEAL IN DEFAULT IS A MISTAKE APPAREN T ON THE FACE OF RECORD. (II) THAT THERE IS NO FAILURE ON THE PART OF THE AP PELLANT WHICH JUSTIFIES THE EX PARTE ORDER. (III) THAT THE REJECTION OF APPEAL BY APPLYING RATI O LAID DOWN IN 38 ITD 320 & 223 ITR 480 IS A MISTAKE APPARENT ON THE FACE OF RECORD IN LIGHT OF FOLLOWING DECISIONS. A) THAT IN THE RECENT DECISION THE HONBLE GUAHATI HIGH COURT IN THE CASE OF RAJENDRA PRASHAD BORAH V/S ITA T [2008] REPORTED IN 302 ITR 243, HAS HELD THAT RULE 24 OF I NCOME TAX (APPELLATE TRIBUNAL) RULE, 1963, AS IT STANDS PER SE DOES NOT EMPOWER THE TRIBUNAL TO DISMISS AN APPEAL FOR DEFAU LT IN THE ABSENCE OF THE APPELLANT. IT WAS FURTHER HELD THAT THE TRIBUNALS M.A. NO. 88/JP/2017 MUKUND LAL JAISANSARIA VS DCIT 3 RELIANCE ON THE DECISION OF THE TRIBUNAL, DELHI, RE NDERED IN CIT V/S MULTIPLAN INDIA (P) LTD 38ITD 320 IS APPARENTLY MIS PLACED IN TEETH OF THE DECISION OF THE APEX COURT IN CIT V S. CHENN IAPPA MUDALIAR 174 ITR 41. IT DIRECTED THE TRIBUNAL TO DECIDE THE APPEALS ON MERITS IN ACCORDANCE WITH LAW. B) FURTHER HONBLE RAJASTHAN HIGH COURT IN THE CAS E OF TRIBHUWAN KUMAR V CIT REPORTED IN 294 ITR 401 IMPLI EDLY OVERRULED THE DELHI BENCH DECISION IN THE CASE OF M ULTIPLAN INDIA (P) LTD REPORTED IN 38ITD 320 THEREFORE THE APPELLANT PRAYS THAT EX PARTE ORDER PASSED MAY KINDLY BE RECALLED AND THE APPEAL BE DECIDED ON MER ITS AFTER HEARING THE APPELLANT. 4. AFTER HEARING BOTH THE SIDES, THE BENCH IS OF TH E VIEW THAT THE ORDER WAS PASSED ON 24/8/2016 AND THE MISC. APPLICAT ION HAS BEEN FILED ON 02/6/2017. AS PER THE AMENDMENT IN SECTION 254 O F THE INCOME TAX ACT, 1961 W.E.F. 01/6/2016, THE LIMITATION FOR FILIN G THE M.A. IS ONLY SIX MONTHS. THUS, THIS M.A. IS BEYOND THE TIME LIMIT PRO VIDED IN THE ACT. THE COORDINATE BENCH OF THIS ITAT IN M.A. NO. 60/JP/2 017 VIDE ORDER DATED 27/12/2017 HAS HELD AS UNDER: 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIAL ON RECORD. WE HAVE GIVEN OUR SINCERE THOUG HT TO PROVISION PROVIDING THE PERIOD OF LIMITATION AS WEL L AS THE ORDER OF THE HONBLE JURISDICTION HIGH COURT DATED 23.11. 2016 IN ITA NO. 245/2016 WHICH IS REPRODUCED IN PARAS 1, 2 & 3 AS UNDER:- M.A. NO. 88/JP/2017 MUKUND LAL JAISANSARIA VS DCIT 4 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 DISC LOSURE MADE BY THE DIRECTOR OF THE COMPANY DURING THE COURSE OF SEARCH. NUMBER OF INCRIMINATING DOCUMENTS WERE FOUND DURING THE COURSE OF SEARCH, ON WHICH THIS DISCLOSURE WAS MADE BUT LATER ON THE ASSESSEE HAS RETRACTED PARTLY FROM THE DISCLOSU RE. 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. TH E APPROPRIATE REMEDY FOR THE APPELLANT IS TO APPROACH THE TRIBUNAL 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 SA ME IS NOT MAINTAINABLE AND APPROPRIATE REMEDY FOR THE APPELLA NT IS TO APPROACH THE TRIBUNAL FOR APPROPRIATE RELIEF. THUS, THE HONBLE HIGH COURT HAS NEITHER THE DIRECTED THE REVENUE TO FILE THE MISCELLANEOUS APPLICATION NOR HAS EXPRESSED ANY VIE W ON THE LIMITATION FOR FILING THE MISCELLANEOUS APPLICATION . THE HONBLE HIGH COURT AS JUST OBSERVED THAT THE GRIEVANCE OF T HE REVENUE COULD HAVE BEEN RAISED IN THE MISCELLANEOUS APPLICA TION INSTEAD OF FILING THE APPEAL. RATHER ON THE DATE OF PASSING THE ORDER M.A. NO. 88/JP/2017 MUKUND LAL JAISANSARIA VS DCIT 5 DATED 23.11.2016 THE MISCELLANEOUS APPLICATION COUL D HAVE BEEN FILED AND THE LIMITATION FOR FILING THE MISCELLANEO US APPLICATION WAS STILL NOT EXPIRED. IT IS PERTINENT TO NOTE THAT THE LIMITATION FOR RECTIFICATION OF MISTAKE APPARENT FROM RECORD AS PE R AMENDED SECTION 254(2) IS 6 MONTHS FROM THE END OF THE MONT H IN WHICH THE ORDER IS PASSED. THE AMENDMENT HAS BEEN BROUGHT INTO THE STATUTE BY FINANCE ACT, 2016 W.E.F. 01.06.2016. SIN CE, THE IMPUGNED ORDER WAS PASSED ON 15.06.2016, THEREFORE, THE PERIOD OF LIMITATION WOULD RECKON FROM THE END OF J UNE, 2016 AND WOULD EXPIRE ON 31.12.2016. UNDISPUTEDLY THE MISCELLANEOUS APPLICATION 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 PRO VIDED IN THE INCOME TAX ACT AND THEREFORE, THE PROVISIONS OF GEN ERAL STATUTE I.E. THE LIMITATION ACT WOULD NOT BE APPLICABLE FOR THE PURPOSE OF LIMITATION OR CONDONATION OF DELAY. THE LEGISLATURE IN ITS WISDOM HAS NOT PROVIDED ANY PROVISION FOR CONDONATION OF D ELAY IN THE INCOME TAX ACT THOUGH, BY WAY OF THIS AMENDMENT IN SECTION 254(2) OF THE INCOME TAX ACT THE LIMITATION FOR REC TIFICATION OF MISTAKE HAS BEEN REDUCED FROM 4 YEARS TO 6 MONTHS. HENCE, IN THE ABSENCE OF ANY PROVISIONS FOR CONDONATION OF DE LAY THE MISCELLANEOUS APPLICATION FILED AFTER THE EXPIRED O F 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 PASSED], WITH A VIEW TO RECTIFYING ANY MISTAKE APPA RENT 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 M.A. NO. 88/JP/2017 MUKUND LAL JAISANSARIA VS DCIT 6 BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE 74 [ASSESSING] OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTH ERWISE INCREASING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AND HAS A LLOWED 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 OCTO BER, 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 O RDER AND THE APPELLATE TRIBUNAL SHALL DISPOSE OF THE APPEAL WITHIN THE SAID PERIOD OF STAY SPECIFIED IN THAT ORDER: 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 DELAY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE, EXTEND THE PERIOD OF STAY, OR PASS AN ORDER OF STAY FOR A FURTHER PERIOD OR PERIODS AS IT THINKS FIT; SO, HOWEVER, TH AT THE AGGREGATE OF THE PERIOD ORIGINALLY ALLOWED AND THE PERIOD OR PERIODS SO EXTENDED OR ALLOWED SHALL NOT, IN ANY CA SE, EXCEED THREE HUNDRED AND SIXTY-FIVE DAYS AND THE APPELLATE TRIBUNAL M.A. NO. 88/JP/2017 MUKUND LAL JAISANSARIA VS DCIT 7 SHALL DISPOSE OF THE APPEAL WITHIN THE PERIOD OR PE RIODS OF STAY SO EXTENDED OR ALLOWED: 80 [ PROVIDED ALSO THAT IF SUCH APPEAL IS NOT SO DISPOSED OF WITHIN THE PERIOD ALLOWED UNDER THE FIRST PROVISO O R THE PERIOD OR PERIODS EXTENDED OR ALLOWED UNDER THE SECOND PRO VISO, WHICH SHALL NOT, IN ANY CASE, EXCEED THREE HUNDRED AND SI XTY-FIVE DAYS, THE ORDER OF STAY SHALL STAND VACATED AFTER T HE EXPIRY OF SUCH PERIOD OR PERIODS, EVEN IF THE DELAY IN DISPOS ING OF 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 DIS MISSED. CONSIDERING THE FACTUAL AND LEGAL POSITION ON THIS ISSUE, THE M.A. FILED BY THE ASSESSEE IS DISMISSED. 5. IN THE RESULT, THE PRESENT MISC. APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08/01/2018. SD/- SD/- FOT; IKY JKO HKKXPAN (VIJAY PAL RAO) (BHAGCHAND) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ TK;IQJ TK;IQJ TK;IQJ @ @@ @ JAIPUR FNUKAD @ DATED:- 08 TH JANUARY, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI MUKUND LAL JAISANSARIA, JHUNJHUN U. 2. IZR;FKHZ @ THE RESPONDENT- THE D.C.I.T., CIRCLE- JHUNJHUNU. 3. VK;DJ VK;QDR @ CIT M.A. NO. 88/JP/2017 MUKUND LAL JAISANSARIA VS DCIT 8 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. 88/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR