SUPER TRADING COMPANY,KOLKATA V. ITO, WARD-30(3), KOLKATA

MA 69/KOL/2025

AI Insights

The case involves Super Trading Company, the appellant, who filed a miscellaneous application seeking restoration of an appeal that was dismissed ex parte by the Tribunal. The dismissal was due to the appellant's failure to appear, attributed to the managing partner's distress over his son's illness. The application was filed 535 days late, but the appellant argued that the delay was justified as they were unaware of the order until they received a certified copy on 15.07.2024. The Tribunal considered the provisions of Section 268 of the Income Tax Act, which excludes the time taken to obtain a copy of the order from the limitation period for filing an appeal or application under the Act. The Tribunal, referencing the judgment in Anil Kumar Nevatia vs. ITO, found merit in the appellant's argument and allowed the restoration of the appeal.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 780571 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-10-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 16-08-2024
• Other Referred Cases: Anil Kumar Nevatia vs. ITO
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside; Period of limitation

Judgement Text

"आयकर अपीलȣय अͬधकरण, कोलकाता पीठ, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “A(SMC)” BENCH KOLKATA Before Shri Rajesh Kumar, Accountant Member and Shri Pradip Kumar Choubey, Judicial Member M.A. No.69/Kol/2025 (Arising out of I.T.A. No.490/Kol/2020) Assessment Year: 2012-13 Super Trading Company..………………. ……………..…..........……….Appellant 909, Himadri, 22, Ballygunge Park Road, Kol – 700019. [PAN: AAMFS4597E] vs. ITO, Ward-30(3), Kolkata…...……...............………........……...…..…..Respondent Appearances by: Shri Amit Agarwal, Advocate, appeared on behalf of the appellant. Shri Susanta Saha, Sr. DR appeared on behalf of the Respondent. Date of concluding the hearing : September 19, 2025 Date of pronouncing the order : October 08, 2025 ORDER Per Pradip Kumar Choubey, Judicial Member: The present miscellaneous application has been filed by the assessee seeking for restoration of the appeal passed in ITA No.490/Kol/2020 dated 25.08.2022. 2. At the first instance, the ld. AR has submitted that the instant miscellaneous application has been filed after a delay of 535 days from the date of passing of the order though according to him, the application has been filed within a period of six months from the date of receipt of certified copy of the said order passed on 25.08.2022. The ld. AR submits that the appeal of the assessee has been dismissed by the Hon’ble Members of the Tribunal vide order dated 25.08.2022 in an ex parte order. The ld. AR by filing petition submitted that due to distress Printed from counselvise.com M.A. No.69/Kol/2025 Super Trading Company 2 of his son illness, the managing partner was unable to male relevant enquiries about the status of the appeal pending in ITAT resulting in an ex parte order passed on 25.08.2022. The assessee applied for a certified copy of the said order by application dated 15.07.2024 then he could know regarding the passing of the order an ex parte. In support, the assessee has filed the order of the Kolkata Bench passed in MA No.06/Kol/2021 on the issue of delay of filing of miscellaneous application and submitted that the said order has been passed keeping in view of the judgment of the Hon’ble High Court Kolkata passed in the case of Anil Kumar Nevatia vs. ITO in ITA No.28 of 2020. The ld. AR had also filed an affidavit to substantiate the reason of delay. 3. Contrary to that, the ld. DR vehemently opposed that the miscellaneous application is completely time barred and the Tribunal has no power to condone the delay. 4. Upon hearing the submissions of the counsels of the respective parties and on perusal of the miscellaneous application we find that it has been filed after a delay of 535 days from the date of order. The submission of the ld. AR is that the order passed by the Tribunal was an ex parte order and he came to know about the passing of the order only in month of July 2024 then he applied for certified copy of the order and got it on 15.07.2024 and immediately on 16.08.2024 he filed the instant miscellaneous application. We have gone through the cited judicial pronouncement by the ld. AR and it is essential to reproduce the relevant portion as under: “2. We find that the ITAT has vide its impugned order dt. 10/07/2018, dismissed the case for non-prosecution. The Hon’ble Jurisdictional High Court in the case of Anil Kumar Nevatia vs. ITO, Ward 40(1), Kolkata & Ors. in ITA No. 28 of 2020, judgment dt. 23/12/2020, considered the following issue:- Printed from counselvise.com M.A. No.69/Kol/2025 Super Trading Company 3 “3. Tribunal held that there was a delay of 66 days in filing the said application by the assessee. Tribunal declined to entertain the said application being barred by limitation holding that the Income Tax Tribunal is a creature of statute and the Tribunal did not have any power to pass an order under Section 254(2) of the Act beyond a period of six months from the end of the month in which the order sought to be rectified was passed. 4. It was further held by the Tribunal that since the order was pronounced on September 09, 2018, in open court, it was to be presumed that the assessee had the knowledge of the order on the date of pronouncement of the order.” The Hon’ble Court decided as follows:- 13. The answer to the controversy can easily be traced to Section 268 of the Act, which has been glossed over by the parties before us as well as by the Tribunal below. Section 268 of the Income Tax Act reads as follows: \"Exclusion of time taken for copy. 268. In computing the period of limitation prescribed for an appeal or an application under this Act, the day on which the order complained of was served and, if the assessee was not furnished with a copy of the order when the notice of the order was served upon him, the time requisite for obtaining a copy of such order, shall be excluded.\" 14. The said section has replaced Section 67-A of the Indian Income Tax Act, 1922. The said section provided as follows:- \"Section 67A. Computation of periods of limitation. -In computing the period of limitation prescribed for an appeal under this Act or for an application under section 66, the day on which the order complained of was made, and the time requisite for obtaining a copy of such order, shall be excluded.\" 15. A comparison of the aforesaid two sections makes it clear that by introducing Section 268, the legislature intended to introduce a different exclusion period in case the order complained of had been served upon the assessee. 16. Section 268 operates in two different scenarios: a. when the copy of the order was served upon the assessee; and b. when the copy of the order was not served with the notice of order. In case of former, the time period between the date of the order and date of service of the order upon the assessee has to be excluded and in the Printed from counselvise.com M.A. No.69/Kol/2025 Super Trading Company 4 latter case the time period spent in obtaining the certified copy of the order by the assessee is to be excluded. 17. In the present case, the order was passed on September 09, 2018, and the copy of order was admittedly served upon the assessee on December 05, 2018. Therefore, the Tribunal should have excluded the time period between September 09, 2018, to December 05, 2018, in computing the period of limitation. The Tribunal was wrong in not applying the exclusion period in computing the period of limitation and rejecting the application being barred by limitation. 18. If Section 254(2) is read with Sections 254(3) and 268 of the Act and no hardship or unreasonableness can be found in the scheme of the Act. The Court need not make a violence to the words of Section 254(2) by substituting the word within \"the end of the month in which the order was passed\" by the word \"the date on which the order was served\". Such interpretation is absolutely uncalled for when the application has been served upon an assessee in terms of Section 254(3) of the Act. 19. Since it is not necessary to interpret Section 254(2) differently to avoid hardship or absurdity or uncertainty, the judgment in D. Saibaba case has no applicability to the present case. 20. The controversy with regard to whether pronouncement of a judgment in open court amounts to communication of the order is much ado about nothing since the order complained of in this case was served upon the assessee in terms of Section 254(3) of the Act. 21. We are not inclined to agree with the reasoning of Peterplast Synthetics P. Ltd. (Supra) since the same was passed without considering Section 268 of the Income Tax Act, 1961. However, we agree with the ultimate conclusion of the said judgment. 22. The appeal is, accordingly, allowed. The Tribunal below is directed to hear out the application under Section 254(2) taken out by the assessee on merit and dispose of the same within a period of six weeks from the date of communication of this order. 23. The Income Tax Appeal No. 28 of 2020 is allowed. There will be no order as to costs.” 3. Applying the propositions of law laid down by the Hon’ble Jurisdictional High Court, in the case of Anil Kumar Nevatia (supra), we admit this miscellaneous application and adjudicate the same as below.” 5. We have also gone through the affidavit filed by the assessee which are as under: Printed from counselvise.com M.A. No.69/Kol/2025 Super Trading Company 5 Printed from counselvise.com M.A. No.69/Kol/2025 Super Trading Company 6 6. Admittedly, in the present case, the order passed by the Tribunal on 25.08.2024 was an ex parte order and the submission of the ld. AR Printed from counselvise.com M.A. No.69/Kol/2025 Super Trading Company 7 is that he filed an application dated 15.07.2024 for obtaining the certified copy of the order of the Tribunal, the contents of the said application is hereinbelow: 7. Going over the said decision cited by the ld. AR as discussed above and perusing the materials available with us, we are inclined to Printed from counselvise.com M.A. No.69/Kol/2025 Super Trading Company 8 allow the miscellaneous application of the assessee by restoring the appeal of the assessee in its original file. The order passed by the Tribunal dated 25.08.2022 is hereby set aside and accordingly, ITA No.490/Kol/2020 is recalled and restored to its original position and the Registry is directed to fix the appeal in normal course of hearing. 8. In the result, the miscellaneous application of the assessee is allowed. Kolkata, the 8th October, 2025. Sd/- Sd/- [Rajesh Kumar] [Pradip Kumar Choubey] Accountant Member Judicial Member Dated: 08.10.2025. RS Copy of the order forwarded to: 1. Appellant - 2. Respondent - 3. CIT(A)- 4. CIT- , 5. CIT(DR), //True copy// By order Assistant Registrar, Kolkata Benches Printed from counselvise.com "