MS VAISHNAVI AGRO THROUGH ONE OF ITS PARTNER SRI KRISHNA KUMAR KHAITANAGED V. INCOME TAX OFFICER

C.M.P./411/2018

AI Insights

The case involves M/s Vaishnavi Agro, the petitioner, who sought the restoration of a previously dismissed tax appeal due to non-compliance with a court order to rectify a defect in the appeal filing. The defect pertained to the absence of a communicated copy of the order from the Income Tax Appellate Tribunal (ITAT), which was necessary for the appeal's compliance. The petitioner argued that the delay in rectifying this defect was caused by the petitioner's illness and the fact that the required document was not in the counsel's possession but with the petitioner. The Income Tax Officer, Deoghar, represented the opposition. The court, after considering the submissions and the circumstances presented, decided in favor of the petitioner, allowing the restoration of the tax appeal to ensure the matter could be adjudicated on its merits.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 672454 (HC-JHARKHAND)
• Appeal Type: Others
• Pronouncement Date: 23-01-2024
• Assessment Year: misc
• Laws Referred To: Limitation Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: R N SAHAY; ANURAG VIJAY
• Assessee Lawyers: MAHENDRA CHOUDHARY; PIYUSH PODDAR
• Keywords: Civil Miscellaneous Petition; Delay condonation; Tax Appeal Restoration; Peremptory Order Compliance
• Section: 5

Judgement Text

" IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No. 411 of 2018 M/s Vaishnavi Agro ….. Petitioner Versus Income Tax Officer, Deoghar ….. Opp. Party --------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA -------- For the Petitioner : Mr. Mahendra Choudhary, Advocate. Mr. Piyush Poddar, Advocate. For the Opp. Party : Mr. R.N. Sahay, Advocate. Mr. Anurag Vijay, Advocate. --------- Order No. 06/Dated: 23rd January, 2024 I.A. No. 1614 of 2019 1. The instant interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 625 days in preferring this civil miscellaneous petition. 2. Heard learned counsel for the parties. 3. Having regard to the averments made in the application and submissions made on behalf of the petitioner, we are of the view that the petitioner was prevented from sufficient cause in filing the instant Civil Miscellaneous Petition within the period of limitation. As such, the delay of 156 days in preferring the instant petition is hereby condoned. 4. I.A. No. 1614 of 2019 stands allowed and disposed of. C.M.P. No. 411 of 2018 5. The instant civil miscellaneous petition has been filed for restoration of the Tax Appeal being Tax Appeal No. 11 of 2016, -2- which stood dismissed for default on 08.11.2016 for non- compliance of the peremptory order dated 27.09.2016 passed in the aforesaid appeal by Hon’ble Co-ordinate Division Bench of this Court. 6. It has been submitted contended that by the aforesaid order dated 27.09.2016, the petitioner was directed to remove the defect within a period of six weeks by passing a peremptory order. The defect, which was pointed out, was to file the communicated copy of the order passed by the Income Tax Appellate Tribunal (ITAT). According to the petitioner, as per the reason assigned in the instant civil miscellaneous petition, the aforesaid defect could not be cured, since, the learned counsel was not having with the possession of the same i.e. communicated copy of order passed by the appellate forum, rather, it was with the petitioner. 7. It has further been submitted that the petitioner, during the aforesaid period, was ill and in hospital and as such, the aforesaid order could not have been procured from him by the learned counsel, therefore, the defect could not be removed. 8. It has further been contended that the reason for not curing the defect since was beyond the control and as such, defect could not have been removed. 9. The further submission has been made that if, the instant civil miscellaneous petition will not be restored, the petitioner will suffer irreparable loss and injury, since, the issue, which is subject matter of the appeal, will not be adjudicated on merit. -3- 10. The learned counsel, based upon the aforesaid ground, has submitted that the instant civil miscellaneous petition may be restored so that the appeal may be heard on merit and the issue be adjudicated, so that logical end may come. 11. Mr. Anurag Vijay, learned counsel has appeared for the respondent, Income Tax and has objected the aforesaid submission. 12. We have heard learned counsel for the parties and considering the reason assigned as also taken into consideration the fact that the nature of defect, which was sought to be cured, was filing of the communicated copy of order passed by the learned Tribunal. 13. The contention so far as it relates to not having the aforesaid communicated copy with the learned counsel for the petitioner, rather, it is in the possession of the litigant, is concerned, appears to be genuine, since the applicant was suffering from ailment. Further, no objection affidavit has been filed on behalf of the Income Tax. 14. Considering the fact that if the instant civil miscellaneous appeal will not be allowed, the issue, which is subject matter of the lis will remain undecided. Accepting the same, the instant civil miscellaneous petition is fit to be allowed. 15. Accordingly, Tax Appeal No. 11 of 2016 is restored to its original file. 16. In the result, the instant civil miscellaneous petition stands disposed of. 17. It is contented by learned counsel for the petitioner that the said communicated copy of the order impugned is now in his possession, -4- as such, the restoration of the Tax Appeal will be subject to filing of the communicated copy of the order within a period of two weeks. 18. Let the name of Mr. R.N. Sahay and Mr. Anurag Vijay, learned counsels be reflected for the opposite party. (Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) Sunil/ "