Income Tax Appellate Tribunal - Hyderabad
A.P.Endowments Archakas & Others ... vs Department Of Income Tax on 23 August, 2013
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCHES "B" : HYDERABAD
BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER
AND
SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER
MA No.37 & 38/Hyd/2013
Arising out of
ITA No 1993 & 1994/Hyd/2011
Assessment Years 2004-05 & 2005-2006
Director of Income Tax vs. A.P.Endowments Archakas and
(Exemptions)-1, other Employees Welfare Fund
Hyderabad. Trust, Hyderabad
PAN AABTA6286F
(Applicant) (Respondent)
For applicant : Smt. T.H.Vijay Lakshmi (D.R.)
For respondent : Shri P.Muralimohan Rao (A.R.)
Date of Hearing : 23.08.2013
Date of pronouncement : 13.09.2013
ORDER
PER SMT. ASHA VIJAYARAGHAVAN, J.M.
By these miscellaneous applications, the department has pointed out that certain errors have crept in the Order of Tribunal in ITA. No. 1993 & 1994/Hyd/2011 dated 06.06.2012.
2. The department has pointed out in the M.A. as follows :
"2. From the copies of Form No.36, filed by the assessee for both the assessment years, as obtained, it is noticed that the said order dated 04.12.2006 of the Director of Income Tax (Exemptions), Hyderabad, not condoning delay of 6 years, 11 months and 6 days, and granting registration u/s.12AA of the Act, w.e.f. 1.4.2006, was received by the assessee on 14.12.2006. The same is mentioned in Col No.9 of that appeal memo in Form No.36, 2 M.A.No.37 & 38/Hyd/2013 A.P. Endowments Archakas and other Employees Welfare Fund Trust, Hyderabad filed by the assessee. In view of this fact, appeal, against the said order of the DIT(Exemptions), ought to have been filed before the Hon'ble ITAT, as per the provisions of section 253(3) of the Act, within 60 days of the date of receipt of such order of the DIT(E), by the assessee i.e., by 12th February, 2007, in this case. However, it is noticed that the said appeals pertaining to asst years 2004-05 and 2005-06, have been filed by the assessee on 05.12.2011. The same is evident from the date mentioned in ink on the right hand top corner of such Form No.36. Thus, it is seen that there was undue and inordinate delay in filing, of such appeals by the assessee. It is further noticed that the Hon'ble ITAT, without addressing such issue of inordinate delay in filing the appeal, has entertained such appeals of the assessee and decided the same on merits, which is an error apparent on record.
3. It may be mentioned here that the Hon'ble jurisdictional ITAT, in their earlier decision in the case of Mahendra Finance Corporation Vs. ITO( 1989)( 29 ITD,
302), held that unless the delay is condoned, the Court or the Tribunal shall not be legally empowered to hear an appeal. In this context, it is pertinent to reproduce the following observation made by the Hon'ble ITAT in that decision
14. As is well known, a time barred appeal, suit or petition strikes at the very root of the jurisdiction of the Court or Tribunal from which its hearing is sought. Till such time the delay is condoned, the court or the Tribunal shall not be clothed with the legal authority to hear it.
3M.A.No.37 & 38/Hyd/2013 A.P. Endowments Archakas and other Employees Welfare Fund Trust, Hyderabad 3.1. Further, referring to the Judgement of Hon'ble Supreme Court in the case of Kiran Singh v. Chaman Paswan AIR 1954 SC 340, the Hon'ble ITAT noted in that decision, that where there is lack of jurisdiction, even on ground of limitation, the Court or Tribunal is precluded from hearing appeal till such time the delay is condoned. The relevant observation made by the Hon'ble ITAT in this regard, in that decision, is reproduced as under:
17. From the aforesaid, it is thus abundantly clear that wherein there is a lack of jurisdiction to the consideration of a matter on merits because of any reason whatsoever - may be territorial, pecuniary or on grounds of limitation, the court or Tribunal is wholly precluded from rendering its decision till such time such legal, inability is overcome.
4. In view of the foregoing discussions, as there is a mistake apparent in the said order of the Hon'ble ITAT in ITA Nos.1993 and 1994 /HYD/2011 for asst years 2004- 05 and 2005-06, dated 06.06.2012, it is respectfully requested that the Hon'ble ITAT may kindly recall their said order dated 06.06.2012 and further to dismiss such time barred appeals of the asses~ for the said two assessment years i.e., 2004-05 and 2005-06.
3. We have heard the parties and perused the material on record. As certain mistakes have crept in our order dated 6th June, 2012 in ITA.No.1993 & 1994/Hyd/2011 for assessment years 2004-005 and 2005-2006, the appeals has to be heard afresh. Hence, we recall our order dated 06.06.2012 in ITA. No. 1993 & 1994/Hyd/2011 and direct 4 M.A.No.37 & 38/Hyd/2013 A.P. Endowments Archakas and other Employees Welfare Fund Trust, Hyderabad the Registry to post the appeals for hearing on 11.12.2013. Since, the date is announced in the open Court, no notice will go to the parties. It is needless to mention that in case, any paper books to be served on either side, the parties are directed to do the same well in advance and no adjournment would be granted to either parties at the time of hearing of the appeals on 11.12.2013.
4. In the result, miscellaneous applications of the department are allowed.
Order pronounced in the open Court, on 13.09.2013.
Sd/- Sd/- (CHANDRA POOJARI) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER
Hyderabad, Date 13th September, 2013.
VBP/-
Copy to
1. Director of Income Tax (Exemptions)-1, Hyderabad.
2. A.P.Endowments Archakas and other Employees Welfare Fund Trust, C/o. P.Murali & Co. C.As. 6-3-655/2/3, 1st Floor, Somajiguda, Hyderabad - 32. PAN AABTA6286F
3. Director of Income Tax (Exemptions)-1, Hyderabad.
4. Dy. Director of Income Tax (Exemptions), Hyderabad.
5. D.R. I.T.A.T. 'B' Bench, Hyderabad