2020 (9) TMI 573 - AT - Income Tax

Rectification u/s 254 - Request for recalling an order wherein the appeal was dismissed on the ground of delay in filing an appeal - seeking restoration of appeal to become eligible for Vivad Se Vishwas Scheme - HELD THAT - One of the conditions for being eligible for such settlement scheme is that the appeal of the assessee should be pending on the specified date before the Tribunal and once, the assessee s application is accepted by the Appropriate Authority under the said scheme, the assessee is required to withdraw his appeal before the Tribunal. By filing the present misc. applications, we therefore find that the assessee is trying to revive his appeal which is already decided against him and thus trying to become eligible for such settlement scheme. Assessee has all the rights to apply for the aforesaid settlement scheme, however, once the appeal of the assessee has been dismissed and decided against it, unless the matter falls under the limited scope of section 254(2) which is not the case here, the act of the assessee to file misc. application to revive such appeals therefore cannot be entertained and encouraged merely for assessee to become eligible for such scheme. Where the assessee is aggrieved with the order of the Tribunal, the assessee is at liberty to approach the right appellate forum as so advised but cannot expect the Tribunal to become a party to its plan to be eligible for such settlement scheme by allowing its prayer to firstly recall the order and then, subsequently on such recall, allow the withdraw of the appeal, being a condition precedent for settlement of dispute. Miscellaneous petitions so filed by the assessee are hereby dismissed

Summary

Issues:
Delay in filing appeals due to health ailment condonation, Scope of powers of Tribunal under section 254(2), Attempt to revive appeal for eligibility under settlement scheme

Delay in filing appeals due to health ailment condonation:
The assessee filed miscellaneous petitions seeking condonation of delay in filing appeals before the Tribunal due to health issues. The assessee relied on a Supreme Court decision stating that delay due to health ailments constitutes sufficient cause for condonation. However, the Department argued that there was a significant delay of 546 days and no medical report or affidavit supporting the health issue was provided. The Bench had dismissed the appeals as barred by limitation. The Tribunal noted that the Supreme Court decision required an explanation supported by an affidavit and/or medical report. The assessee's assertion of health issues without proper documentation was insufficient. The Tribunal's powers under section 254(2) are limited to rectifying apparent mistakes on record at the time of passing the order, not accepting new evidence.

Scope of powers of Tribunal under section 254(2):
The Tribunal analyzed the facts and circumstances, emphasizing the need for diligence and explanation for the delay in filing appeals. The Bench had considered the lack of medical evidence and dismissed the appeals based on the substantial delay and lack of diligence on the assessee's part. The Tribunal reiterated that the assessee's one-liner application without supporting documentation did not justify condonation of the delay. The Tribunal's decision was based on the absence of concrete evidence supporting the health issue and the lack of due care and attention on the assessee's part.

Attempt to revive appeal for eligibility under settlement scheme:
The Tribunal addressed a letter where the assessee expressed intent to opt for a settlement scheme requiring pending appeals. The Tribunal observed that the assessee's attempt to revive dismissed appeals to become eligible for the scheme was not permissible. The Tribunal clarified that once an appeal is dismissed, the Tribunal cannot be involved in reviving it solely for the purpose of eligibility under a settlement scheme. The Tribunal dismissed the miscellaneous petitions filed by the assessee, emphasizing that the Tribunal cannot entertain actions aimed at manipulating eligibility criteria for settlement schemes.

In conclusion, the Tribunal dismissed the miscellaneous petitions, highlighting the importance of providing proper documentation, diligence, and adherence to legal procedures in filing appeals and seeking remedies. The judgment underscored the limited scope of the Tribunal's powers under section 254(2) and the need for valid justifications supported by evidence in seeking condonation of delays.