Income Tax Appellate Tribunal - Mumbai
Naimesh Mishra, Mumbai vs Ito 17(3)(3), Mumbai on 24 September, 2021
1 आयकर अपीलीय अधिकरण "बी" न्यायपीठ मुंबई में।
IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH, MUMBAI माननीय श्री मनोज कुमार अग्रवाल ,लेखा सदस्य एवुं माननीय श्री रववश सूद, न्यावयक सदस्य के समक्ष।
BEFORE HON'BLE SHRI MANOJ KUMAR AGGARWAL, AM & HON'BLE SHRI RAVISH SOOD, JM (Hearing Through Video Conferencing Mode) M. A. No. 49/Mum/2021 (Arising out of ITA No. 4787/Mum/2013) (धििाारण वर्ा / Assessment Year: 2009-10) Naimesh Ramakant Mishra ITO 17(3)(3) 204,70/74, Saikripa, K. K. Marg, बिाम/ Room No.613, Piramal Chambers Jacob Circle, Mumbai -400 018 Vs. Jijeebhai Lane, Morarji Mills Parel, Mumbai-400 012 स्थायीलेखासं ./ जीआइआरसं ./ PAN/GIR No. AANPM-5267-C (अपीलाथी/Appellant) : (प्रत्यथी / Respondent) Assessee by : Shri Pankaj Toprani- Ld. AR Revenue by : Shri Brajendra Kumar-Ld. Sr. DR सुनवाई की तारीख/ : 27/08/2021 Date of Hearing घोषणा की तारीख / : 24/09/2021 Date of Pronouncement आदे श / O R D E R Manoj Kumar Aggarwal (Accountant Member)
1. By way of this miscellaneous application, the assessee seeks recall of ex-parte order passed by Tribunal in captioned appeal on 13/12/2017. The application has been filed on 19/02/2021 along with letter of condonation as supported by affidavit of the assessee. The material contents of the affidavit read as under: -
1. I had neither received any notice of Tribunal appeal hearing bearing ITA No. 4787 /Mum/ 2013 nor was aware of the date on which the order was passed. Since 2 no notice of the said hearing was received by me, nobody appeared and hence the order was passed ex-parte.
2. I became aware of such order recently in the month of January, 2021 when the Income Tax Officer informed me. As I wanted to opt for Vivad se Vishwas Scheme I have already filed Form 1 which is a declaration form but now I realise that there is no pending proceeding as the Tribunal has already passed ex-parte order.
3. The date of Tribunal order is 13.12.2017. Since I was not aware of such Tribunal order no appeal against such order is filed in the High Court. I can only opt for Vivad se Vishwas Scheme if any appeal or application is pending before any Income Tax Authorities. As per section 254(2) of the Income Tax Act, 1961, the time limit of filing Miscellaneous Application is 6 months from the end of the month in which the impugned order of the Hon'ble Tribunal is passed. In order to recall the ex-parte order passed on 13.12.2017, the time limit of filing Miscellaneous Application was 30.06.2018.
4. However, the same was filed on 19th February, 2021 one month after I came in knowledge of the Tribunal order and after having detailed consultation with my chartered accountants. I state that my Miscellaneous Application was filed in time and that the limitation period will start from the date when I came in knowledge of the said order. I rely on the ratio of the following decisions:
i) Pacific Projects Ltd. vs. ACIT (430 ITR 522) (2021) (Delhi HC).
In this decision the Delhi HC has held that the limitation period would not start from the date on which order was pronounced by the Tribunal but it would start from point when said order came in knowledge of the assessee.
ii) Pawan Kumar Jain vs. DCIT (155 TTJ 114) (2013) (Mumbai Tribunal) In this decision the Mumbai Tribunal has held that for the purpose of filing application under section 254(2), period of limitation would start from point of time when said order is communicated to assessee and not from date of passing the order.
iii) Daryapur Shetkari Sahakari Ginning and Pressing Factory vs. ACIT (277 Taxman 155) (2021) (Bombay HC).
In this decision the Bombay HC has held that the period of limitation prescribed in section 254(2) would commence from the date when affected party got knowledge of decision in question and it would not commence from date when order was passed.
I state that whatever has been stated above is true to my own knowledge.
Subsequently, the copies of Form No.1 & Form No.2 as filed by the assessee under Rule 3 of Direct Tax Vivad Se VIshwas Scheme on 06/03/2021 for this year has also been placed on record. On the strength of these documents, the Ld. AR sought recall of the ex-parte order.
2. After going through the application, we find that it is the submission of the assessee that hearing notice of the appeal was not received. Further, the ex-parte order was not in the knowledge of the assessee 3 until January, 2021 when Income Tax Officer informed him about the same. As counted from this date, the miscellaneous application is within time limit of 6 months. The Hon'ble Delhi High Court in recent decision titled as Pacific Projects Private Ltd. V/s ACIT (125 Taxmann.com 94; 23/12/2020), in the context of Sec.254(2) of the Income Tax Act, 1961, has held that the limitation period would start from the point when the order came in knowledge of the assessee. When the assessee has preferred miscellaneous application within 6 months from the date when the ex-parte order came into the knowledge of the assessee, the said application was to be accepted. We find that in this case before Hon'ble High Court, the ex-parte order was passed by Tribunal on 01/09/2017 which is quite similar to order under consideration before us which has been passed on 13/12/2017 and therefore, the ratio of this decision is squarely applicable to present application before us.
3. We find that while allowing the assessee's writ petition, the Hon'ble Court relied on its earlier decision titled as Golden Times Services Private Ltd. V/s DCIT (2020; 113 Taxmann.com 524) which held that the courts have always leaned in favour of an interpretation which would enable an aggrieved party to avail its remedy in a meaningful manner so that the right conferred by a provision does not remain fanciful or illusionary. Relying upon the same, Hon'ble Court held that the limitation would begin to run when the affected person has the knowledge of the decision. The date when the order was passed cannot be solely determined by referring to the date when the same was signed by the ITAT. The Section and the Rule mandates the communication of orders to the parties. Thus, the date of communication or knowledge, actual or constructive, of the order sought to be rectified or amended u/s 254(2) of 4 the Act become critical and determinative for the commencement of period of limitation. The ITAT has not applied its mind on this aspect and has been swayed by the literal and mechanical construction of the words "six months" from the end of the month in which the order was passed. The ITAT failed to even delve into the question whether the affected party, either actually or constructively, was in knowledge of the order passed by the Tribunal. Accordingly, the assessee's petition was allowed.
4. Similar is the decision of Hon'ble Bombay High Court in Daryapur Shetkari Sahakari Ginning and Pressing Factory V/s ACIT (123 Taxmann.com 301; 16/10/2020) wherein it was held that period of limitation would commence only from the date on which the order came into the knowledge of the assessee. The Hon'ble Court, referring to Rule 24 of Income Tax (Appellate Tribunal) Rules, 1963, observed that when the appeal is called for hearing but the appellant does not appear either in person or through an authorized representative then the Tribunal is required to dispose of the appeal on merits after hearing the respondent. If such course has been followed and the appellant appears thereafter and furnished sufficient cause for its non-appearance then Tribunal can set-aside the ex-parte order. While allowing the appeal, Hon'ble Court also accepted the ratio laid down in the decision of Hon'ble Delhi High Court in Golden Times Services Private Ltd. V/s DCIT (supra).
5. Thus, applying the aforesaid principles, we would hold that the limitation period would run from the date when the ex-parte order passed by Tribunal came into the knowledge of the assessee. Further, since the assessee has already opted to settle the dispute under Direct Tax Vivad Se Vishwas Scheme, we see no reason as to the why the ex-parte order 5 should not be recalled. Therefore, we recall the ex-parte order dated 13/12/2017 and restore the appeal back to its original position and number. The registry is direct to place the appeal for regular hearing before regular bench.
6. The application stand allowed in terms of our above order.
Order pronounced on 24th September, 2019
Sd/- Sd/-
(Ravish Sood) (Manoj Kumar Aggarwal)
न्यावयक सदस्य / Judicial Member लेखा सदस्य / Accountant Member
मुंबई Mumbai; वदनां क Dated :24/09/2021
Sr.PS, Dhananjay
आदे शकीप्रधिधलधपअग्रेधर्ि/Copy of the Order forwarded to :
1. अपीलाथी/ The Appellant
2. प्रत्यथी/ The Respondent
3. आयकरआयुक्त(अपील) / The CIT(A)
4. आयकरआयुक्त/ CIT- concerned
5. ववभागीयप्रवतवनवध, आयकरअपीलीयअवधकरण, मुंबई/ DR, ITAT, Mumbai
6. गार्ड फाईल / Guard File आदे शािसार/ BY ORDER, उप/सहायक पुंजीकार (Dy./Asstt.Registrar) आयकरअपीलीयअधिकरण, मुंबई / ITAT, Mumbai.