M/s D Radhakrishna, Devorkonda, V. ACIT, Circle-12(1), Hyderabad

MA 96/HYD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0272 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 28-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M H NAIK
• Assessee Lawyers: V SHIV KUMAR
• Keywords: Period of limitation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNA L HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER MA NO. 96/HYD/2013 IN ITA NO. 66/HYD/2007 ASSESSMENT YEAR 2002-03 SRI D. RADHAKRISHNA DEVARAKONDA PAN: ABPPD9229F VS. THE ASST. CIT CIRCLE-12(1) HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SRI V. SHIV KUMAR RESPONDENT BY: SRI M.H. NAIK DATE OF HEARING: 10.05.2013 DATE OF PRONOUNCEMENT: 24.05.2013 O R D E R PER CHANDRA POOJARI, AM: BY THIS MISCELLANEOUS APPLICATION (MA) THE ASSESSE E SEEKS RECALL OF EX-PARTE ORDER OF THIS TRIBUNAL DAT ED 2 ND MARCH, 2009. 2. AT THE OUTSET, THE LEARNED DR OBJECTED ENTERTAINING OF THIS MA AS ON THE DATE OF HEARING I.E., 10.5.201 3, FOUR YEARS HAVE ALREADY LAPSED FROM THE DATE OF ORDER OF THIS TRIBUNAL I.E., 2.3.2009 AND IN VIEW OF PROVISIONS O F SECTION 254(2) OF INCOME-TAX ACT, 1961 THIS MA CANNOT BE ENTERTAINED BY THE TRIBUNAL. 3. THE LEARNED AR SUBMITTED THAT THE ASSESSEE HAS FILE D THIS MA ON 28.2.2013 I.E., WITHIN FOUR YEARS FROM THE DA TE OF ORDER OF THIS TRIBUNAL I.E., ON 2 ND MARCH, 2009 AND IF THE MA IS NOT DISPOSED OF WITHIN FOUR YEARS, THE REASON CANNOT BE ATTRIBUTABLE M A NO. 96/HYD/2013 SRI D. RADHAKRISHNA ================ 2 TO THE ASSESSEE AND BEING SO, THE PRESENT MA IS MAI NTAINABLE BEFORE THIS TRIBUNAL. 4. WE HAVE HEARD BOTH THE PARTIES ON THE PRIMARY ISSUE OF MAINTENANCE OF THIS MA BEFORE THIS TRIBUNAL. AS PE R THE PROVISIONS OF SECTION 254(2), AT ANY TIME WITHIN FO UR YEARS FROM THE DATE OF THE ORDER OF THE TRIBUNAL, THE TRIBUNAL CAN AMEND THE ORDER PASSED U/S. 254(1) OF THE ACT. ADMITTEDL Y, IN THIS CASE, THE ASSESSEE FILED MA ON 28.2.2013 I.E., WITH IN FOUR YEARS FROM THE DATE OF TRIBUNAL ORDER, AS THE TRIBUNAL PA SSED ITS ORDER ON 2 ND MARCH, 2009. AS PER SECTION 254(2) OF THE ACT, TH IS MA SHOULD BE DISPOSED OF ON OR BEFORE 1 ST MARCH, 2013. HOWEVER, AS DECIDED IN THE CASE OF IAC VS. BALLARPUR INDUSTR IES LTD. (21 ITD 164), THE STIPULATION IN SECTION 254(2) THAT RE CTIFICATION OF THE ORDER HAS TO BE MADE WITHIN FOUR YEARS FROM THE DATE OF TRIBUNAL ORDER U/S. 254(1) OF THE ACT IS ONLY DIREC TORY AND NOT MANDATORY. THIS WILL BE SPECIFICALLY SO WHERE THE PARTY CONCERNED FILED AN APPLICATION FOR RECTIFICATION WI THIN THE PERIOD OF LIMITATION AND FOR SOME REASON OR THE OTHER NO A CTION WAS TAKEN BY THE TRIBUNAL TO DISPOSE OF THE APPLICATION WITHIN THE PERIOD OF LIMITATION. IN THIS CASE THE ITO HAD APP LIED FOR RECTIFICATION WITHIN FOUR YEARS FROM THE DATE OF TR IBUNAL ORDER BEFORE WHICH RECTIFICATION COULD BE MADE AND IT WAS BECAUSE OF MISTAKE OF THE TRIBUNAL OR ITS OFFICE, THE ORDER RE CTIFYING THE MISTAKE COULD NOT BE PASSED WITHIN THE PERIOD OF FO UR YEARS. SUCH DELAY ON THE PART OF THE RECTIFYING AUTHORITY I.E., THE TRIBUNAL WHICH IS NOT UNDER THE CONTROL OF THE ASSE SSEE OR THE DEPARTMENT, CANNOT TAKE AWAY THE STATUTORY RIGHT TO HAVE THE ORDER RECTIFIED IN ACCORDANCE WITH LAW. THIS IS A MISTAKE APPARENT FROM RECORD. IN VIEW OF THE MATTER, THE T RIBUNAL IS BOUND TO RECTIFY THE MISTAKE EVEN THOUGH THE PERIOD OF FOUR YEARS HAD LAPSED, SINCE THE PARTY CONCERNED HAS APP LIED FOR M A NO. 96/HYD/2013 SRI D. RADHAKRISHNA ================ 3 SUCH RECTIFICATION WELL IN ADVANCE AND THE DELAY IN RECTIFICATION IS NOT ATTRIBUTABLE TO THE PARTY CONCERNED. 5. IN VIEW OF THE ABOVE ORDER OF THE TRIBUNAL, WE ARE INCLINED TO ADMIT THE MA FILED BY THE ASSESSEE. 6. NOW COMING TO THE MERIT OF THE ISSUE RAISED BY THE ASSESSEE IN HIS MA, THE EX-PARTE ORDER WAS PASSED B Y THE TRIBUNAL DISMISSING THE ASSESSEE'S APPEAL FOR WANT OF PROSECUTION. THE AR EXPLAINED THAT NON-REPRESENTAT ION OF ASSESSEE'S CASE WAS DUE TO WRONGLY NOTING THE DATE OF HEARING AS 3.3.2009 INSTEAD OF 2.3.2009. IN OUR OPINION, THE ERROR IS HUMAN. WE, THEREFORE, RECALL THE EX-PARTE ORDER OF THE TRIBUNAL DATED 2 ND MARCH, 2009 IN ITA NO. 66/HYD/07 AND THE APPEAL IS RESTORED ON THE FILE OF THIS TRIBUNAL AND THE APPEA L IS POSTED FOR HEARING ON 28.8.2013. NO SEPARATE NOTICE OF HEARIN G WOULD BE SENT TO BOTH THE PARTIES AND THIS ORDER ITSELF WOUL D SERVE AS A NOTICE OF HEARING. 7. IN THE RESULT, MA BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 24 TH MAY, 2013. SD/ - (SAKTIJIT DEY) JUDICIAL MEMBER SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED 24 TH MAY, 2013 TPRAO COPY FORWARDED TO: 1. SRI D. RADHAKRISHNA, DEVELOPMENT OFFICER, LIC OF INDIA, 19-119, GANDHINAGAR, DEVARAKONDA, NALGONDA DIST. 508 648. 2. THE ACIT, CIRCLE - 12(1), HYDERABAD. 3. THE CIT(A) - II, HYDERABAD. 4. THE CIT - I, HYDERABAD. 5. THE DR A' BENCH, ITAT, HYDERABAD.