M/S. Lahoti India Ltd., Formerly known as M/S. Lahoti Infrastucture Ltd, Kolkata V. I.T.O., Ward - 6(2), Kolkata, Kolkata

MA 9/KOL/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 6286 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-06-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 30-11-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 23-01-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANKIT JALAN
• Keywords: Period of limitation; Condonation of delay
• Section: 254(2)

Judgement Text

| आयकर अपीलीय अिधकरण ᭠यायपीठ, कोलकाता | IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, KOLKATA BEFORE DR. MANISH BORAD, HON’BLE ACCOUNTANT MEMBER & SHRI SONJOY SARMA, HON’BLE JUDICIAL MEMBER M.A. No. 9/Kol/2023 I.T.A. No. 1001/Kol/2013 Assessment Year: 2009-10 Lahoti Infrastructure Ltd. Room No. 106, 1 st Floor 4, Fairlie Place Kolkata - 700001 [PAN: AABCL0391B] Vs Income Tax Officer, Ward – 6(2), Kolkata अपीलाथᱮ/ (Appellant) ᮧ᭜ यथᱮ/ (Respondent) Assessee by : Shri Ankit Jalan, A/R Revenue by : Shri Abhijit Kundu, CIT, D/R सुनवाई कᳱ तारीख/Date of Hearing : 03/05/2024 घोषणा कᳱ तारीख /Date of Pronouncement: 27/06/2024 आदेश/O R D E R PER DR. MANISH BORAD, ACCOUNTANT MEMBER : This miscellaneous application u/s 254(2) of the Act filed at the instance of the assessee is directed against the order of this Tribunal in ITA No. 1001/Kol/2013 dt. 15/12/2017. 2. The Registry has informed that present miscellaneous application is time barred by 1668 days. The ld. Counsel for the assessee was asked to reply as to how this miscellaneous application can be entertained as there is no power with this Tribunal to condone the delay in filing a miscellaneous application u/s 254(2) of the Act in the given case, where the time period to file miscellaneous application is six months from the end of the month in which the order was passed and since the impugned order was passed in 15/12/2017 and the miscellaneous 2 M.A. No. 9/Kol/2023 I.T.A. No. 1001/Kol/2013 Assessment Year: 2009-10 Lahoti Infrastructure Ltd. application has been filed on 25/01/2023. To this, the ld. Counsel for the assessee submitted that there is no delay in filing of this miscellaneous application because the impugned order was received by the assessee on 28/10/2022. In support, he referred to the affidavit for condonation of delay. The content of the same are reproduced below:- “We have received a notice on 06.03.2023 stating that there is a delay of 1668 days in filing the Miscellaneous application in our case. In this regard, we would like to submit the following: 1. That as per our record the ITAT order dated 15.12.2017 was not received by us and the same was also named in the OLD name and address. Therefore, it was not received by us. 2. That we have applied for certified to be true copy and the same was received by our counsel on 28.10.2022 and accordingly the miscellaneous application was filed on 24.01.2023. 3. That, we are enclosing herewith, a sworn affidavit in this regard and we pray before your kind self to kindly condone the delay, if any and admit the appeal. That we shall be grateful to your kind self and shall be ever praying for this act of kindness. Affidavit for Condonation of Delay 1. I, Amit Kumar Lahoti, son of Shri Shyam Sundar Lahoti, by faith Hindu, am the director of M/s. Lahoti India Limited (hereinafter referred as appellant) situated at 41 A, AJC Bose Road, Diamond Prestige, Unit- 611, Kolkata-700017, do hereby solemnly affirm and declare as follows: 2. That the appellate order passed by the Ld. Commissioner of Income Tax (Appeals) -VI, Kolkata dated 15.03.2013 was challenged before the Hon’ble Income Tax Appellate Tribunal, Kolkata Bench in FORM No. 36 on 29.04.2013 by M/s. Lahoti India Limited (Formerly known as Lahoti Infrastructure Limited) having its registered office at 4, Fairlie Place, Room no. 106, Kolkata 700001. 3. That the above stated appeal was handed over to a Ld. Counsel and he was appointed to look after all the details of the case, to file paper book, to represent before the Hon’ble ITAT on the date of hearings and all other related matters. 4. That the Ld. Counsel made representation before the Hon’ble ITAT. 3 M.A. No. 9/Kol/2023 I.T.A. No. 1001/Kol/2013 Assessment Year: 2009-10 Lahoti Infrastructure Ltd. 5. That in the midst of hearing before the Hon'ble ITAT, the name and address of the appellant company was changed to; M/s. Lahoti India Ltd. with its new address at 41 A, AJC Bose Road, Diamond Prestige Unit No. 611, Kolkata -700017. 6. That the appellant on instructed by the Hon'ble bench, submitted the revised FORM No. 36 with the new name and address in April 2016 informing the change of name and address with supporting documents. 7. That the Ld. Authorized Representative of the appellant had also submitted paper book supporting the grounds of appeal while hearing before the Hon'ble ITAT. 8. That on one occasion fixing the date of hearing on 31.10.2017, the notice was issued in Old name and Old address for which the appellant was not aware and therefore, could not appear. The case was heard. 9. That the Hon'ble ITAT, dismissed the appeal for non appearance vide order dated 15.12.2017. 10. That the above order was also made in the old name of M/s. Lahoti Infrastructure Ltd. having the old address at 4, Fairlie Place, Room No. 106, Kolkata 700001. 11. That I was not aware about the disposal of appeal and the above order was also never received by us as the name and address mentioned in the order was not existing. 12. That I was rest assured that the case is well within the control of the Ld. Authorized Representative and was alive. 13. That during Covid unfortunately the Ld. Authorized Representative expired. 14. That I thereafter enquired about the status of pending case. 15. That I came to know from the office of Hon'ble ITAT, that the appeal has been disposed in December 2017.” 3. The ld. Counsel for the assessee stated that the name and address of the company was changed and it was duly informed to the Registry by way of filing revised Form 36 on 13/04/2016. However, the impugned order has been passed in the old name and under old addresses and, therefore, this order was never received by the assessee on this revised address. The facts narrated by the ld. Counsel for the 4 M.A. No. 9/Kol/2023 I.T.A. No. 1001/Kol/2013 Assessment Year: 2009-10 Lahoti Infrastructure Ltd. assessee are found to be correct as revised Form 36 has been filed with the Registry on 13/04/2016 wherein, the same of the company has been changed to M/s. Lahoti India Limited and the address is also changed. But the impugned order has been framed in the old name and the old address. 3.1. We further, on going through the order sheet, notice that on 22/02/2019, an application was filed through the authorised representative on 14/02/2019, requesting for the certified copy of the Tribunal’s order and the same was provided to the authorised representative on 22/02/2019. When the assessee was confronted with this fact that when the order was already been received by it on 22/02/2019, then why it is stated that it has received the order on 28/02/2022. To this query, it was submitted by ld. A/R that the authorised representative of the assessee at that point of time may have received copy of the order but it was never communicated to the assessee. In support, he again filed an affidavit on 21/06/2023 stating that the impugned order was never received by it on 22/02/2019 as the same was received by the ld. A/R but was never intimated the assessee. The content of the affidavit dt. 21/06/2023, reads as follows:- “1. I, Amit Kumar Lahoti, son of Shri Shyam Suridar Lahoti, by faith Hindu, am the director of M/s. Lahoti India Limited (hereinafter referred as appellant) situated at 41 A, AJC Bose Road, Diamond Prestige, Unit- 611, Kolkata-700017 [formerly known as M/s Lahoti Infrastructure Ltd.], do hereby solemnly affirm and declare as follows: 2. That for the assessment year 2009-2010, assessment order was passed u/s. 143(3) of the Income Tax Act, 1961 by the Ld. Income Tax Officer, Ward 6(2), Kolkata (hereinafter referred to as Ld. A.O), inter alia, making addition of Rs. 1,00,02,000/- to the total income in the name of the appellant. 5 M.A. No. 9/Kol/2023 I.T.A. No. 1001/Kol/2013 Assessment Year: 2009-10 Lahoti Infrastructure Ltd. 3. That the impugned addition was challenged before the Ld. CIT(A), the case was represented by an appointed learned representative arid it was submitted that the impugned amount was not income of the appellant as the amount was returned back due to failure of the project. 4. That the Ld. CIT(A) did not accept the submission made the appellant and confirmed the addition made by the Ld. Assessing Officer. 5. That the appellant company preferred second appeal before the Hon^ble ITAT, Kolkata bench and handed over its case to a learned counsel to take care of the hearings and submission required. 6. That I being not aware about the intricacies of the Income Tax Act, 1961 and the rules of Hon'ble ITA'C use to follow the instructions given by the appointed counsel. The Ld. Counsel from time to time required all the details of the case and the same was handover by me to him to make proper representation before the court. 7. That as per my knowledge the case was running smoothly as I use to provide all the details to him as and when required and also sign the documents where ever I was told to do so. 8. That on the demise of the appointed counsel I inquired about the where abouts of my case and was informed that the case is disposed long back on 15.12.2017 by the Hon'ble ITAT. 9. That the order of the Hon'ble ITAT was never served to me at the registered address. 10. That on appointment of another counsel, I was suggested to collect a certified copy and apply for miscellaneous application as the order was passed ex parte without considering the submissions and paper book filed by the previous A.R. and also in the old name and old address without considering the revised FORM No. 36 filed by the appellant during the course of appellate proceedings. 11. That on receipt of certified copy of the order a Miscellaneous application was filed by the appellant.” 4. Now, from conjoint reading of both the affidavits, firstly regarding the non-receipt of the impugned order due to change of name and address and secondly, that the ld. A/R of the assessee at that point of time took copy of the order at later stage and the same was never handed over to the assessee. We also note that the impugned order has been passed ex-parte for non-prosecution and there is no adjudication on merits of the case. The ld. D/R, though not leaving his grounds, did not oppose the contents of both the affidavits filed by the assessee. 6 M.A. No. 9/Kol/2023 I.T.A. No. 1001/Kol/2013 Assessment Year: 2009-10 Lahoti Infrastructure Ltd. 4.1. Under the given facts and circumstances and keeping in view that, the impugned order is an ex-parte order and appeal is not disposed on merits, if assessee satisfies that its case falls under proviso to Rule 24 of ITAT Rules such appeal can be restored any time. On the strength of the facts narrated in the two affidavits (supra), assessee has satisfied this Tribunal that there was sufficient cause for his non-appearance, we, therefore, hold that the present miscellaneous application is not barred by limitation and is fit to be admitted for adjudication on merits. 5. The ld. Counsel for the assessee stated that the impugned order is ex-parte and this Tribunal has not dealt with the merits of the case and as per the contents of two affidavits (supra), proviso to Rule 24 of the ITAT Rules, 1963, are squarely applicable and he, therefore, prayed that the impugned order may be recalled for the limited purpose of hearing on merits. In support reliance was placed on the judgment of the Hon’ble High Court at Delhi in the case of OM Prakash Sangwan v. Income-tax Officer, Ward- 33(4), New Delhi, reported in [2018] 94 taxmann.com 394 (Delhi), and recent decision of this Tribunal in the case of Ravilochanah Mercantile Pvt. Ltd. vs. ITO in M.A. No. 46/Kol/2022, order dt. 19/05/2023. On the other hand, the ld. D/R opposed the contentions but was fair enough to accept that this Tribunal has not dealt with the merits of the case in the impugned order. 6. We have heard rival contentions and perused the material placed before us. Perusal of the impugned order dt. 15/12/2017 indicates that assessee’s appeal was dismissed for non-prosecution and this Tribunal 7 M.A. No. 9/Kol/2023 I.T.A. No. 1001/Kol/2013 Assessment Year: 2009-10 Lahoti Infrastructure Ltd. placing reliance on the judgment of CIT vs. B.N. Bhattacharjee and anor. reported in 118 ITR 461, Estate of Late Tukojiroa Holkar vs. CWT reported in 223 ITR 480 (MP) and also on the decision Tribunal in the case of CIT vs. Multiplan India (P) Ltd., 38 ITD 320 (Del.), has dismissed the appeal. However, in para 3 of the impugned order, opportunity has been given to the assessee stating that if the Bench is convinced that the assessee was prevented by sufficient case from appearing before the Bench, this order may be recalled if it is within the period of limitation. Thus, we find that the impugned order was ex-parte, merits of the case were not dealt and opportunity was given to assessee to prove that for sufficient cause it could not appear before the Bench on the date of hearing. Now, Rule 24 of ITAT Rules, 1963 has a direct bearing on the instant issue and the same is reproduced below:- “24. [ Hearing of appeal ex parte for default by the appellant [Substitued by the Income-tax (Appellate Tribunal) Amendment Rules, 1987 (w.e.f. 1st August, 1987)] - Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorised representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent : Provided that where an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance, when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex parte order and restoring the appeal.]” 7. Now on perusal of the above Rules and examining the facts of the case in the light of the two affidavits filed by the assessee, we find that there was sufficient cause which prevented the assessee from appearing before this Tribunal Bench on the date of hearing and since merits of the case has not been discussed in the impugned order, we find force in the present miscellaneous application of the assessee and the impugned 8 M.A. No. 9/Kol/2023 I.T.A. No. 1001/Kol/2013 Assessment Year: 2009-10 Lahoti Infrastructure Ltd. order dt. 15/12/2017, deserves to be recalled. For coming to this conclusion, we draw strength from the judgment of the Hon’ble Delhi High Court in the case of OM Prakash Sangwan v. Income-tax Officer, Ward- 33(4), New Delhi (supra) wherein at para 3, it has been held as under:- “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 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 appeal 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 thirty days from today.” 7.1. Further reliance in placed on the decision of this Tribunal in the case of Ravilochanah Mercantile Pvt. Ltd. vs. ITO (supra), wherein at para 2 & 3, it has been held as under:- “2. It has been in the application that the erstwhile director of the assessee company had engaged one Shri Mihir Bandyopadhyay to represent the assessee before this Tribunal. However, on the date of hearing on 04.02.2019, the said Mr. Bandyopadhyay for the reason not known to the assessee did not appear before the Tribunal resulting into the dismissal of the appeal for want of prosecution. The order of the Tribunal was never served upon the assessee. That thereafter Covid-19 pandemic started and Mr. Bandyopadhyay died on 04.02.2022. That it was only after the demise of Mr. Bandyopadhyay on 04.02.2022, the entire records relating to the instant case was received from his office and another professional was consulted and thereafter it came to knowledge that the appeal of the assessee was dismissed for want of prosecution. The assessee immediately obtained copy of the order and filed the present miscellaneous application. The ld. counsel has further submitted that even otherwise, the appeal was dismissed for non-prosecution without any discussion on merits. He, in this respect, has relied upon the decision of the Hon’ble Delhi High Court in the case of ‘Om Prakash Sangwan v. ITO’ reported in [2018] 94 taxmann.com 394 (Delhi), wherein, it has been held that where the appeal of the assessee is dismissed by the Tribunal for non-prosecution and since under Rule 24 of 9 M.A. No. 9/Kol/2023 I.T.A. No. 1001/Kol/2013 Assessment Year: 2009-10 Lahoti Infrastructure Ltd. the Appellate Tribunal Rules the appeal was to be decided on merits, therefore, in such a case it was open to the assessee to approach Tribunal for restoration of appeal. 3. Considering the above submissions of the assessee, we are convinced that the appeal of the assessee should be restored and the same should be heard on merits in the interests of justice. In view of this, the present miscellaneous application of the assessee is allowed and the appeal is ordered to be restored to its original position. The registry is directed to fix the date of hearing of the appeal in regular course. Copy of this order be also placed in the main file. 8. Respectfully following the above decisions, we recall the impugned order of this Tribunal dt. 15/12/2017 for adjudication of the main appeal on merits. Registry is directed to reinstate the appeal to its original number and fix it for hearing in due course. 9. In the result, miscellaneous application filed by the assessee is allowed. Order pronounced in the Court on 27 th June, 2024 at Kolkata. Sd/- Sd/- (SONJOY SARMA) (DR. MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER Kolkata, Dated 27/06/2024 *SC SrPs आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy of the Order forwarded to : 1. अपीलाथᱮ / The Assessee 2. ᮧ᭜यथᱮ / The Respondent 3. संबंिधत आयकर आयुᲦ / Concerned Pr. CIT 4. आयकर आयुᲦ)अपील (/ The CIT(A)- 5. िवभागीय ᮧितिनिध ,आयकर अपीलीय अिधकरण, कोलकाता/DR,ITAT, Kolkata, 6. गाडᭅ फाई/ Guard file. आदेशानुसार/ BY ORDER, TRUE COPY Assistant Registrar आयकर अपीलीय अिधकरण ITAT, Kolkata