2019 (12) TMI 75 - AT - Income Tax

Condonation of delay - Miscellaneous Application for rectification of mistake filed belatedly - HELD THAT - When the miscellaneous application is barred by limitation and following the earlier order of this Tribunal in case of ITO vs. Shri Ram Ratan Modi 2018 (2) TMI 589 - ITAT JAIPUR we dismissed the miscellaneous application as not maintainable being barred by limitation. Accordingly, when there is no provision of condonation of delay for filing of the Miscellaneous Application then the Miscellaneous Application filed belatedly is not maintainable being barred by limitation provided under section 254(2) of the Act and accordingly the same is dismissed.

Issues Involved:
1. Maintainability of the Miscellaneous Application due to delay in filing.
2. Non-receipt of notice of hearing by the assessee.
3. Previous conduct of the assessee in prosecution of the appeal.
4. Tribunal's jurisdiction to condone delay in filing the Miscellaneous Application.

Issue-wise Detailed Analysis:

1. Maintainability of the Miscellaneous Application due to delay in filing:
The primary issue was whether the Miscellaneous Application filed by the assessee was maintainable given the delay of 412 days. The Tribunal noted that the provisions under section 254(2) of the Income Tax Act prescribe a limitation period of six months for rectifying any mistake apparent from the record. The Tribunal emphasized that there is no provision for condonation of delay in filing the Miscellaneous Application, thus, it has no jurisdiction to condone such delay. Citing previous cases, including Shri Vinod Kumar Singh vs. ITO and ITO vs. Shri Ram Ratan Modi, the Tribunal reiterated that the application filed beyond the prescribed period is not maintainable.

2. Non-receipt of notice of hearing by the assessee:
The assessee argued that they did not receive any notice of hearing from the Tribunal, leading to non-appearance on the date of the hearing. However, the Tribunal found no evidence to support this claim. The record showed that the order dated 27.10.2017 was sent through Registered A/D and was not returned unserved. Therefore, the Tribunal did not accept the assessee's contention of non-receipt of the order.

3. Previous conduct of the assessee in prosecution of the appeal:
The Tribunal observed that the assessee had a history of non-appearance and non-prosecution. The appeal had been dismissed previously on 15.06.2015 for non-prosecution and was later restored on the assessee's Miscellaneous Application. Despite this, the assessee continued to be negligent in prosecuting the appeal. The Tribunal noted that the assessment order was passed ex parte under section 144 due to the assessee's non-appearance and lack of submissions before the CIT (A). This pattern of behavior indicated the assessee's casual and negligent approach towards the proceedings.

4. Tribunal's jurisdiction to condone delay in filing the Miscellaneous Application:
The Tribunal clarified that it does not have the jurisdiction to condone the delay in filing the Miscellaneous Application as per section 254(2) of the Income Tax Act. The Tribunal referred to the amendment in the Act effective from 01.06.2016, which reduced the limitation period for rectification of mistakes from four years to six months. The Tribunal cited the decision in Bharat Petroleum Corpn. Ltd. v. ITAT, which held that the Tribunal cannot condone delays where the statute does not provide such power. The Tribunal concluded that the Miscellaneous Application filed by the assessee was not maintainable due to being barred by the limitation period.

Conclusion:
The Tribunal dismissed the Miscellaneous Application of the assessee on the grounds of being barred by limitation and lack of jurisdiction to condone the delay. The assessee's contention of non-receipt of notice was not accepted due to lack of evidence. The Tribunal highlighted the assessee's consistent negligence in prosecuting the appeal and upheld the principle that statutory limitations must be strictly adhered to. The order was pronounced in the open court on 19/07/2019.

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