IN THE ITAT AHMEDABAD BENCH ‘A’
Agni Briquette (P.) Ltd.
V/s.
Assistant Commissioner of Income-tax, Circle-2
MA NOS. 72 AND 73 (AHD.) OF 2012
IT APPEAL NOS. 497 AND 498 (AHD.) OF 2003
[ASSESSMENT YEAR 1997-98]
JUNE 15, 2012
ORDER
Mukul Kr. Shrawat, Judicial Member –
These two miscellaneous petitions have been filed on 4.4.2012 pertaining to Assessment Year 1997-98 arising from a consolidated order of the Tribunal; as mentioned in the nomenclature hereinabove; dated 23/02/2007. The referred two appeals have been filed against the orders of Learned CIT(Appeals)-V, Baroda respectively 22.11.2002 and 20.11.2002 passed for the A.Y. 1997-98 as recorded by the Respected Co-ordinate Bench in the impugned order. Due to non-appearance on the part of the appellant, the Respected Co-ordinate Bench had thought it justifiable to dismiss both the appeals ex-parte following two precedents, namely (i) Hon’ble Madhya Pradesh High Court’s decision in the case of Estate of Late Tukojirao Holkar v. CWT [1997] (223 ITR 480) and (ii) Hon’ble Delhi Tribunal’s decision in the case of Multiplan (India) P.Ltd. (38 ITD 320). However, the short-prayer through these two Miscellaneous Applications is to reinstate the said two appeals by recalling the said order of the Tribunal.
2. At the outset, before we proceed to decide the merits of the petition, we have noticed that the Registry has marked that these tow petitions are time-barred by 1 year 1 month and 10 days. The order of the Tribunal is dated 23.2.2007, however, the impugned petitions have been filed on 4.4.2012.
3. In respect of the delay in filing of the miscellaneous petition, ld.AR Mr.J.P.Shah has stated that the applicant had enquired from ITAT Website about the status of appeal and came to know that the ITAT “A” Bench Ahmedabad on 23/02/2007 has dismissed both the appeals. Thereafter on 19.9.2011, the applicant had requested the Registrar, ITAT to give a certified copy of the order and the evidence of service of notice. In response to the said letter, the Registry of ITAT vide letter dated 18/11/2011 asked the assessee to deposit the requisite fees for obtaining certified copy of the order. On submitting the challan, a certified copy of the order have been provided to the assessee on 18/11/2011. Mr.Shah has informed that the business of the company was closed down and the said Unit was in the possession of the Gujarat State Financial Corporation. The notice which was sent to the assessee returned back by the postal authority with the remarks “left”. Since the date of hearing was not in the notice of the appellant, hence, no one was present on the date of hearing fixed on 23/2/2007. Revenue Department had already attached the property of the Directors and initiated recovery proceedings. According to the applicant, therefore, the said ITAT order dated 23/2/2007 for both the appeals was received on 19.11.2011. Thereafter, the Miscellaneous Application was moved on 4.4.2012, hence within the prescribed period. In support, certain paras of Miscellaneous Petitions are referred before us, reproduced for ready reference:-
“4. The Applicant thereafter wrote letter to The Deputy Registrar, ITAT, Ahmedabad on 19/09/2011 and requested to give the certified copy of the Order and evidence of notice served to the them. In response to this letter, the Registrar of ITAT, Ahmedabad, vide letter dated 18/11/2011, asked the Appellant to deposit fees of Rs.40/- through challan for obtaining certified copy of the ex-parte order as well as evidences. On submitting the challan, the Applicant was given certified copy of order and evidences personally on 18/11/2011. In the said evidence, Your Honour will notice that since business of the Company was closed and the Unit was in possession of Gujarat State Financial Corporation, the notice sent to the Applicant was returned back to the sender by the postal authority with a remark “left”. As a result, the Applicant could not remain present before the Hon.Bench in the hearing fixed on 23/02/2007. The said envelope with the remark marked ‘left’ is enclosed herewith marked ANNEXURE-C (collectively). Meantime, the Department attached the personal property of the Directors and initiated recovery proceedings against the property of the Directors and against the company to whom the said property was sold. Finally, in view of day to day harassment of the Department the Applicant has filed a writ Petition No.3910/2012 before the High Court of Gujarat which is pending. The Applicant was therefore continuously involved in this and hence could not approach your Honour earlier for reinstatement of the Appeal. An affidavit in support of the above is enclosed herewith marked ANNEXURE-D.
5. The Applicant has therefore received the ITAT Order dated 23/02/2007 on 19/11/2011 only. In the aforesaid circumstances, the Applicant requests Your Honour to condone the delay in filing this Miscellaneous Application and humbly prays that, under the above stated facts and circumstances of the case and in the interest of substantial justice, the above stated ex-parte order passed by the Hon’ble Tribunal on 23/02/2007, may be kindly recalled and the matter be decided afresh after granting the Applicant, a proper and adequate opportunity of being heard and for which act of kindness the Applicant for ever shall remain grateful to your Honours.”
4. The ld.AR has referred a Writ Petition (civil) 528 of 2002 of the Hon’ble Supreme Court of India in the case of D.Saibaba v. Bar Council of India & Anr. [2003] 6 SCC 186, date of judgement 6/5/2003 for the legal proposition that a decision can be said to be communicated. He has raised a question which was before the Hon’ble Court that how can a person aggrieved be expected to exercise the right conferred by any provisions of law unless the order is communicated to or is known to him either actually or constructively? Ld.AR has pleaded that the words “the date of that order”, therefore must be construed as the date of communication or knowledge, as held in the said order of the Hon’ble Court. Ld.DR has also placed reliance on Vekatadri Traders Ltd. v. CIT [2001] 248 ITR 0681 (Mad.) for the legal proposition that the delay which is required to be explained is the period from the date on which the order sought to be revised had come to the knowledge of the assessee. If the cause of justice requires that a liberal view be taken, then a liberal view would indeed be warranted while considering the question of condoning the delay. An another order of Hon’ble Madaras High Court pronounced in the case of O.A.O.A.M. Muthiah Chettiar v. CIT [1951] 019 ITR 0402 (Mad.) for the legal proposition that an application filed before a Commissioner be not treated barred by limitation if the relief sought could not be obtained under any other provisions of the Act and, therefore the application for the issue of a writ of mandamus was held as maintainable. Reliance has also been placed on Petlad Bulakhidas Mills Co.Ltd. v. Raj Singh [1959] 037 ITR 0264 (Bombay) to describe the expression “order”; i.e. an order of which the party has constructive notice. Limitation should not be computed from a date earlier than that on which the assessee actually knew of the order or had an opportunity of knowing of the order. The ld.AR has also drawn our attention on the sequence of the dates as follows:-
