Smt Shamshunnisa Begum, Bidar v. Income-tax Officer, Ward-1, Bidar

MA 141/BANG/2019 | 2008-2009
Pronouncement Date: 27-11-2019 | Result: Allowed

Appeal Details

RSA Number 14121124 RSA 2019
Assessee PAN APHPB9973P
Bench Bangalore
Appeal Number MA 141/BANG/2019
Duration Of Justice 26 day(s)
Appellant Smt Shamshunnisa Begum, Bidar
Respondent Income-tax Officer, Ward-1, Bidar
Appeal Type Miscellaneous Application
Pronouncement Date 27-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 27-11-2019
Assessment Year 2008-2009
Appeal Filed On 01-11-2019
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES A BENCH: BANGALORE BEFORE SHRI A.K. GARODIA ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE JUDICIAL MEMBER M.P. NOS. 138 TO 141 /BANG/2019 (IN ITA NO S . 1223 TO 1226 /BANG/201 4 (ASSESSMENT YEARS : 2005 - 06 TO 2008 - 09 ) MS. SHAMSUNISSA BEGUM D/O MIR HASSAN ALI NO.8 - 9 - 633 NEAR NEHRU STADIUM BIDAR. PAN: APHPB 9973P VS. DY. COMMISSIONER OF INCOME TAX CIRCLE 11(1) BANGALORE. ( PETITIONER ) (RESPONDENT) PETITIONER BY: SHRI BALRAM R RAO ADVOCATE . RESPONDENT BY: SHRI G. ELAMURUGU JCIT (D.R) DATE OF HEARING : 1 5.11 .2019 DATE OF PRONOUNCEMENT : 27 . 11. 2019 O R D E R PER SHRI PAVAN KUMAR GADALE JM : THE ASSESSEE HAS FILED FOUR MISC. PETITIONS SEPARATELY FOR ASSESSMENT YEARS 2005 - 06 TO 2008 - 09. WE FOUND THE GROUNDS OF MISC. PETITIONS ARE IDENTICAL IN ALL THE PETITIONS HENCE THEY ARE CLUBBED AND HEARD TOGETHER AND CON SOLIDATED ORDER IS PASSED. THERE FORE FOR THE SAKE OF CONVENIENCE WE SHALL TAKE UP MISC. PETITION NO.138/BANG/2019 WHICH READ AS UNDER. 2 M.P. NO S . 138 TO 141 /BANG/2019 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN MISC. PETITION : 3 M.P. NO S . 138 TO 141 /BANG/2019 4 M.P. NO S . 138 TO 141 /BANG/2019 5 M.P. NO S . 138 TO 141 /BANG/2019 3. WE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE LEARNED AUTHORISED REPRESENTATIVES CONTENTION S ARE THAT THE HON'BLE TRIBUNAL IS ORDER DT.7.4.2016 HAS PASSED EX PARTE ORDER FOR NON - PROSECUTION . WE FOUND THAT THE TRIBUNAL IN ITA NOS.1223 TO 1226/BANG/2014 FOR THE ASSESSMENT YE ARS 2005 - 06 TO 2008 - 09 HAS DISMISSED THE APPEAL BY OBSERVING THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL AND APPLY THE CO - ORDINATE BENCH DECISION IN THE CASE OF CIT VS. MULTI PLAN PLAN (INDIA) PVT. LTD. 38 ITR 320 . SUBSEQUENTLY THE ASSESS EE FILED M.P. NOS.8 TO 11/BANG/2017 DT.31.3.2017 WHERE THE CO - ORDINATE BENCH OF TRIBUNAL OBSERVED AT PAGE 9 PARA 7 READ AS UNDER : 7. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF BHARAT PETROLEUM CORPORATION LTD. VS. ITAT AND OTHERS (SUPRA) WE HOLD THAT THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE AR E BEYOND THE PERIOD OF LIMITATION AS PROVIDED UNDER SECTION 254(2) AND ARE NOT MAINTAINABLE. ACCORDINGLY THE SAME ARE DISMISSED BEING BARRED BY LIMITATION. 6 M.P. NO S . 138 TO 141 /BANG/2019 AGAIN THE ASSESSEE FILED M.PS IN 28 TO 31/BANG/2019 DT.5.7.2019 WHERE THE TRIBUNAL HAS OBSERVED AT PAGE 5 PARAS 2 & 3 WHICH READ AS UNDER : 2. WE HEARD BOTH THE PARTIES AND PERUSED THE MISC. PETITIONS FILED. WE FIND AS PER THE CONTENTS OF THE MISC. PETITIONS THERE IS NO SUCH CONTENTION RAISED BY THE ASSESSEE THAT THERE IS A MISTAKE APPAREN T FROM THE RECORD IN THE TRIBUNAL ORDER DT.7.4.2016. WHEREAS THE MISC. PETITIONS ARE FILED FOR RECTIFICATION OF MISTAKES CREPT IN THE ORIGINAL ASSESSMENT ORDER OF RELEVANT ASST. YEARS. UNDER THE PROVISIONS OF SECTION 254(2) OF THE INCOME TAX ACT 1961 TH E APPELLATE TRIBUNAL MAY RECTIFY ANY MISTAKE APPARENT FORM THE RECORD AMEND ANY ORDER PASSED BY IT. SINCE THERE IS NO CLAIM OF THE ASSESSEE IN THE MISC. PETITIONS THAT THERE IS MISTAKE CREPT IN THE TRIBUNAL ORDER WE FIND THERE IS NO MERIT IN THE MISC. PETITIONS FILED BY THE ASSESSEE AND IS DISMISSED. 3. IN OTHER MISC. PETITIONS ALSO THE POSITION IS SAME AND HENCE THOSE MISC. PETITIONS ARE ALSO DISMISSED ON THE SAME BASIS. 4. PRESENTLY THE ASSESSEE HAS FILED M.P. NOS.138 TO 141/BANG/2019 FOR THE ASSESSMENT YEAR 2005 - 06 TO 2008 - 09 IN ITA NOS.1223 TO 1226/BANG/2014 DT.7.4.2016. THE TRIBUNAL ORDER WAS PASSED ON 7.4.2016 AND WAS NOT DECIDED ON MERIT S AND DISMISSED FOR NON - PROSECUTION. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT T HE ASSESSEE IS 73 YEARS OLD LADY LIVING IN BIDAR AND DOES NOT HAVE INTERNET AND OTHER MODES OF COMMUNICATION. THE ASSESSEE HAS NOT RECEIVED THE NOTICE OF HEARING AND HENCE COULD NOT COMMUNICATE TO THE A.R. AND THEREFORE NONE APPEARED ON THE DATE OF HEAR ING BEFORE THE TRIBUNAL ON 7.4.2016. THE LD. AR FURTHER EMPHASIZED ON THE RULE 24 OF THE ITAT RULES 1963 WHERE THE APPEAL HAS BEEN DISPOSED EXPARTE AND THE ASSESSEE APPEARS AFTERWARDS SATISFIES TO THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR NON - A PPEARANCE WHEN THE APPEAL WAS CALLED FOR 7 M.P. NO S . 138 TO 141 /BANG/2019 HEARING THEN THE TRIBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE EXPARTE ORDER AND RESTORE THE APPEAL. CONTRA THE LD. DR SUPPORTED THE ORDERS OF TRIBUNAL . 5. WE FOUND THE SUBMISSIONS OF THE LD AR ARE REALI STIC AND FURTHER WE CONSIDER IT PROPER TO REFER THE PROVISIONS OF SECTI O N 254(2) OF THE INCOME TAX ACT 1961 APPLICABLE AS ON 7.4.2016 BEING THE DATE OF DISPOSAL BY THE TRIBUNAL. SECTION 254 (2) THE APPELLATE TRIBUNAL MAY AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF ORDER 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 : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREASING THE LIABILITY OF THE ASSESSEE SHALL NOT BE MADE UNDER THIS SUB - SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE ASSESSE E OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD : PROVIDED FURTHER THAT ANY APPLICATION FILED BY THE ASSESSEE IN THIS SUB - SECTION ON OR AFTER THE 1ST DAY OF OCTOBER 1998 SHALL BE ACCOMPANIED BY A FEE OF FI FTY RUPEES. ON PERUSAL OF THE ABOVE PROVISIONS WE FOUND THAT THE LIMITATION TO FILE A MISC. PETITION WAS FOUR YEARS FROM THE D A T E O F O R D E R IN WHICH AN ORDER WAS PASSED FOR THE PURPOSE OF RECTIFYING ANY MISTAKE APPARENT ON RECORD. WHEREAS THE A MENDMENT IN F INANCE ACT 2016 BEING EFFECTIVE FROM 1.6.2016 THE LIMITATION TO FILE A MISC. PETITION HAS BEEN REDUCED TO SIX MONTHS FROM THE END OF 8 M.P. NO S . 138 TO 141 /BANG/2019 THE MONTH IN WHICH THE ORDER WAS PASSED. ON CONSIDERING THE PRESENT FACTS THAT THE TRIBUNAL ORDER PASSED IN ITA NOS.1223 TO 1226/BANG/2014 DT.7.4.2016 WAS PRIOR TO THE AMENDMENT OF FINANCE ACT 2016 WHICH IS EFFECTIVE FROM 1.6.2016 WE FOUND SUFFICIENT CAUSE FOR NON - APPEARANCE ON THE DATE OF HEARING AND ASSESSEE HAS FILED FIRST M.P. ON 13.1.2017 WHICH WAS DISMIS SED AND THE SECOND M.P. WAS DISMISSED ON 5.7.2019 AND PRESENTLY THE ASSESSEE HAS FILED A M.P. AND EXPLAINING THE SUFFICIENT CAUSE . WE FOUND PRIOR TO 1.6.2016 LAW APPLICABLE W AS W HERE THE A PPELLATE TRIBUNAL MAY AT ANY TIME WITHIN FOUR YEARS FROM THE DATE O F ORDER TO RECTIFY ANY MISTAKE APPARENT FROM RECORD. EVEN IF WE CONSIDER FOUR YEARS FROM THE DATE OF ORDER OF TRIBUNAL DT.7.4.201 6 THE LIMITATION PERIOD ENDS ON 7.4.2020. BUT THE PRESENT M.PS ARE FILED WITHIN THE LIMITATION PERIOD AND HENCE THEY ARE ADM ITTED AND HEARD. ACCORDINGLY CONSIDERING THE PROVISIONS AND THE SUBMISSIONS OF THE LD. AR AND THE ASSESSEE HARDSHIP WE ARE OF THE SUBSTANTIVE OPINION THAT THE EXPARTE ORDER HAS TO BE RECALLED AS THE M.P S ARE FILED BY THE ASSESSEE WITHIN THE TIME PERIOD OF FOUR YEARS FROM THE DATE OF ORDER WHICH IS NOT DISPUTED. ACCORDINGLY WE RECAL THE TRIBUNAL ORDER DT.7.4.2016 AND DIRECT THE REGISTRY TO POST THE APPEAL IN THE REGULAR COURSE AND INFORM THE PARTIES BY REG ISTERED POST AND ALLOW THE MISC. PETITION OF THE ASSESSEE. SIMILARLY THE MISC. PETITION NOS. 13 9 TO 141/BANG/2019 ARE ALSO ALLOWED AND DIRECT THE REGISTRY TO POST THE APPEALS FOR HEARING IN REGULAR COURSE AND INFORM THE PARTIES. 9 M.P. NO S . 138 TO 141 /BANG/2019 6. IN THE RESULT THE MISC. PETITION NOS.138 TO 141/BANG/2019 AR E ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 7 T H NOV. 2019. S D / - S D / - (A.K. GARODIA) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 2 7 .11. 2019. *REDDY GP COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT (A) 4. PR. CIT 5. DR ITAT BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL BANGALORE