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2019 (7) TMI 939 - HC - Income TaxCondonation of delay - delay of 497 days in filing the miscellaneous petition - reasons assigned by the petitioner for not appearing before the Tribunal due to some mis-communication between the petitioner company and its Chartered Accountant - HELD THAT - Undisputably, the miscellaneous petition was filed with the delay of 497 days before the Tribunal and the Tribunal has no power to condone the delay beyond 6 months, if so, the petitioner approaching this Court under Articles 226 and 227 cannot be held to be unjustifiable. The Division Bench of this Court in identical circumstances in the case of M/S.PRACTICE STRATEGIC COMMUNICATIONS INDIA PRIVATE LIMITED vs. THE COMMISSIONER OF SERVICE TAX, BANGALORE 2017 (1) TMI 659 - KARNATAKA HIGH COURT has held that remedy available to the assessee to seek for condonation of delay beyond the statutory period of limitation is only under Article 226 and 227 of Constitution of India. In the circumstances, the writ petition deserves to be entertained. As regards the reasons assigned by the petitioner to condone the delay of 497 days may be unsatisfactory, but the same requires to be considered in the light of disposal of the original appeal by the Tribunal for non prosecution. It is well settled law that Tribunal is bound to dispose of the matter on merits even in the absence of the appearance of the assessee or its counsel. It is thus clear that the dismissal of the appeal for non prosecution has resulted in failure of justice, which necessarily requires to be rectified. Hence, considering the same, the delay of 497 days in filing the miscellaneous petition has to be condoned subject to imposing costs of ₹ 5,000/- to the petitioner.
Issues Involved:
Challenge to order passed by Income Tax Appellate Tribunal under Section 254(2) of the Income Tax Act, 1961 for the assessing year 2011-12; Dismissal of appeal by Tribunal due to lack of representation by assessee; Filing of miscellaneous application before Tribunal under Rule 24 of the Income Tax Appellate Tribunal Rules, 1963 to condone delay of 497 days; Competency of Tribunal to condone delay beyond 6 months; Invocation of writ jurisdiction under Articles 226 and 227 of the Constitution of India for condonation of delay; Sufficiency of reasons for delay in filing miscellaneous petition; Rectification of failure of justice due to dismissal of appeal for non-prosecution. Analysis: The petitioner, a company engaged in various business activities, challenged the order of the Income Tax Appellate Tribunal related to the assessment year 2011-12. The Tribunal dismissed the appeal as there was no representation by the assessee during the hearing. Subsequently, the petitioner filed a miscellaneous application before the Tribunal to condone a delay of 497 days, which was dismissed on the ground that the Tribunal lacked the authority to condone delays beyond 6 months. The petitioner argued that the Tribunal's dismissal for want of prosecution was contrary to the rules, emphasizing that the Tribunal should decide on the appeal's merits regardless of representation. However, due to statutory limitations, the Tribunal could not condone the delay beyond six months. The petitioner then sought relief under Articles 226 and 227 of the Constitution of India for condonation of delay. The Court considered the reasons for the delay, noting a miscommunication between the petitioner company and its Chartered Accountant. Despite the revenue's contention that the reasons were insufficient, the Court found them satisfactory, especially considering the dismissal of the appeal for non-prosecution, which led to a failure of justice that needed rectification. Ultimately, the Court allowed the writ petition, setting aside the Tribunal's orders and remanding the matter for fresh consideration, subject to the petitioner depositing a cost of ?5,000. The parties were directed to appear before the Tribunal without further notice. The Court emphasized the importance of rectifying the failure of justice caused by the dismissal of the appeal, highlighting the Tribunal's obligation to decide cases on their merits even in the absence of the assessee or counsel.
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