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2020 (1) TMI 132 - HC - Income TaxExparte order of the ITAT - contention of the petitioner that owing to the defective notice, the petitioner was unable to appear before the Hon ble ITAT - Misc.Petitio was filed to recall the said order and the same came to be dismissed for the delay caused in filing the petition - HELD THAT - This court is of the considered view that there is considerable force in the submission of the learned counsel for the revenue in view of the miscellaneous petition being dismissed as time barred. This court deems it appropriate to set aside the same in view of the law declared by this court in the case of M/s. Karuturi Global Ltd., 2019 (7) TMI 939 - KARNATAKA HIGH COURT where in, it is held that the 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, where the Tribunal has dismissed the appeal as time barred, the writ jurisdiction is the appropriate remedy available to the petitioner. This court finds it appropriate to condone the delay in filing the miscellaneous petition and remand the matter to the ITAT to reconsider the matter on merits
Issues:
Assailing orders of Income Tax Appellate Tribunal (ITAT) related to assessment year 2012-13, defective notice preventing appearance before ITAT, dismissal of appeal by ITAT, filing of Misc. petitions for recalling orders, maintainability of Misc. petition against another Misc. petition, delay in filing Misc. petitions, remedy under Article 226 and 227 of Constitution of India for condonation of delay, appropriate jurisdiction for seeking remedy, condonation of delay in filing Misc. petition No. 94/BANG/2018, remanding the matter to ITAT for reconsideration on merits. Analysis: The petitioner challenged orders passed by ITAT for the assessment year 2012-13 due to a defective notice preventing appearance before ITAT. The petitioner filed Misc. petitions for recalling the orders, which were dismissed for delay. The counsel argued that an ex parte order of ITAT is not a speaking order, denying a reasonable opportunity to present the case. The court considered the dismissal of Misc. petition No. 94/BANG/2018 as time-barred and set it aside, citing the need for condonation of delay under Article 226 and 227 of the Constitution of India. The court emphasized that the writ jurisdiction is the appropriate remedy when an appeal is dismissed as time-barred. The Revenue's counsel contended that no Misc. petition is maintainable against the order passed in another Misc. petition. The court agreed that the order in Misc. Petition No. 374/BANG/18 rejecting the petition was justifiable. However, the court found it necessary to consider the order in Misc. Petition No. 94/BANG/2018 due to the dismissal being time-barred. After hearing both parties, the court decided to condone the delay in filing Misc. petition No. 94/BANG/2018 and remand the matter to ITAT for reconsideration on merits. The court quashed the order dated 11.05.2018 and directed ITAT to expedite the decision after hearing the parties. Consequently, the dismissal of the petition in Misc. Petition No. 374/BANG/2018 was deemed sustainable in light of the restoration of Misc. Petition No. 94/BANG/2018 to the ITAT's file. In conclusion, the writ petition was disposed of accordingly, emphasizing the need for condonation of delay under the appropriate jurisdiction and remanding the matter to ITAT for reconsideration on merits.
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