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Income Tax Appellate Tribunal - Amritsar

The Income Tax Officer, Amritsar. vs Sh. Jugal Kishore Sharma S/O Sh. Sat Pal ... on 17 May, 2023

               IN THE INCOME TAX APPELLATE TRIBUNAL
                     AMRITSAR BENCH, AMRITSAR


           BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER
           AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER


                              M. A. No. 11/Asr/2020
                      (Arising out of ITA No. 543/Asr/2016)
                            Assessment Year: 2007-08


     Income Tax Officer,           Vs.   Sh. Jugal Kishore Sharma
     Amritsar                            S/o Satpal Sharma
                                         Opp. Central Jail, Ajnala
                                         Road, Amritsar
                                         [PAN: AFNPK 8632A]
        (Appellant)                         (Respondent)


                 Appellant by : Sh. Sanjeev Sud, CA
                Respondent by: Sh. Radhey Shyam Jaiswal, Sr. DR

                      Date of Hearing: 10.05.2023
               Date of Pronouncement: 17.05.2023

                                ORDER


Per Dr. M. L. Meena, AM:

The Miscellaneous Application was filed by the Revenue against the order of the ITAT dated 26.08.2019 in ITA No. 543Asr/2016. 2 MA No. 11/Asr/2020

ITO v. Jugal Kishore Sharma

2. At the outset, the ld. DR for the Department submitted that the Hon'ble ITAT Amritsar Bench has dismissed the appeal of the Department in ITA No. 543/Asr/2016 vide order dated 26.08.2019, treating the same as withdrawn in view of the CBDT Circular No. 17/2019 dated 08.08.2019 on account of tax effect involved was Rs.37,28,341/- which was being below the monetary limits at Rs.50,00,000/- specified in aforesaid circular in filing the appeal before the Income Tax Appellate Tribunal. It is, further submitted that the department has filed prosecution in the case of the appellant assessee and this appeal falls within the exception as per para 10 clause (f) of the CBDT New Delhi Circular No. 03 of 2019 dated 11.07.2018. He contended that though the tax effect is involved is less than the specified monetary limit, but it is covered under exception of clause (f) to para 10 of the CBDT Circular. Accordingly, he requested for admission of miscellaneous application of the Revenue and to recall the appeal to be heard on merits.

3. Per, contra, the defendant counsel for the assessee contended that the miscellaneous application filed by the Revenue is time barred as per the time limit prescribed u/s 254(2) of the I.T. Act. Since, the order of the 3 MA No. 11/Asr/2020 ITO v. Jugal Kishore Sharma ITAT was passed on 26.08.2019 and miscellaneous application was filed on 22.06.2020 after a period of 9 months 27 days and even by counting the covid period, there was a delay of two months approximately in filing the miscellaneous application by the department. The provisions of section 254(2) are reproduced for the ready reference hereunder:

"As per sec. 254(2) which is reproduced- "The appellate Tribunal may, at any time within (six months from the end of the month in which order was passed), with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the (Assessing) Officer."

However, your honour may please, to adjourn the case, for some further date for us to submit our plea."

4. The counsel further argued that the prosecution launched by the department in the case of the appellant-assessee is filed. Hence, there is no such proceeding pending before the Chief Judicial Magistrate, Amritsar. The copy of the judgment of the Chief Judicial Magistrate is filed on record. The relevant part of the decision is reproduced hereunder:

"14. Thus in my considered opinion, the ingredients of section 276C(2) of Income Tax Act particularly with respect to willful default by the accused are not made out even prima facie. Accordingly, the accused is ordered to be discharged. File be consigned to the record room."

ITO v. Jugal Kishore Sharma

5. After having heard both the sides and perusal of facts on record, we hold that the miscellaneous application filed by the department is time barred by two months and that the Tribunal has no authority or powers under the law to condone the delay. Further, the contention of the ld. DR that the prosecution proceedings has been launched against the appellant- assessee is factually incorrect, hence the case does not fall in the exception provided clause in the (f) to para 10 of the aforesaid CBDT circular. Accordingly, we find no merit and substance in the miscellaneous application filed by the department and as such same is rejected.

6. In the result, the miscellaneous application filed by the department is dismissed.

Order pronounced in the open court on 17.05.2023 Sd/- Sd/-

              (Anikesh Banerjee)                    (Dr. M. L. Meena)
               Judicial Member                     Accountant Member
*GP/Sr. PS*
Copy of the order forwarded to:
  (1) The Appellant:
  (2) The Respondent:
  (3) The CIT(A),
  (4) The CIT concerned
                           5
                                                MA No. 11/Asr/2020
                                        ITO v. Jugal Kishore Sharma

(5) The Sr. DR, I.T.A.T
(6) The Guard File
                              True Copy
                                  By Order