9911796707
TMI Blog2012 (6) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... itions is beyond jurisdiction, hence rejected. - MA Nos. 72 and 73/Ahd/2012 (In I.T.A. Nos. 498 & 497/Ahd/2003) - - - Dated:- 15-6-2012 - MUKUL KR. SHRAWAT, A.K. GARODIA, JJ. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onally 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 afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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:- 25.01.2007 Notice of hearing by the Tribunal came back unserved with the remark "Left". 23.02.2007 Tribunal dismissed the appeal of the assessee by order dated 23.02.2007 07.05.2007 The above dismissal order of the Tribunal came back unserved with the remark "Left". 29.09.2008 The office of the Tribunal sent the order to Asst.C.I.T., Baroda for service on assessee. 26.07.2011 Assessee writes to the Assessing Officer that the Tribunal's appeal is pending; Annexure-B in M.A. Sept. 2011 From Tribunal's website it is know that the assessee's appeal is dismissed by the Tribunal. 19.09.2011 Assessee applies for the certified copy of the order of the Tribunal, copy of the evidence of service of notice and service of above order. 18.11.2011 The office of the Tribunal asked the assessee to deposit the amount of rs.40/- for getting the above copies. 19.11.2011 Assessee gets the above cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e nature provisions of this very Act where a time period is prescribed in filing of an appeal, then we have noticed that in those provisions, the Statute has clearly mandated the date of service as the date for calculating the time period prescribed. In Section 249; relevant provision for appeals before the Learned CIT(Appeals) the limitation for filing an appeal is prescribed as per Section 249(2); reproduced below:- Section 249 (2) :- The appeal shall be presented within thirty days of the following date, that is to say,- [( a ) where the appeal is under section 248, the date of payment of the tax, or] ( b ) where the appeal relates to any assessment or penalty, the date of service of the notice of demand relating to the assessment or penalty: [Provided that, where an application has been made under section 146 for reopening an assessment, the period from the date on which the application is made to the date on which the order passed on the application is served on the assessee shall be excluded, or] ( c ) in any other case, the date on which intimation of the order sought to be appealed against is served. 6.2 . It is worth noting that Section 249(2) has specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Respected Co-ordinate Bench. Meaning thereby the appellant has never enquired in the said four years between 2003 to 2007 about the fate of his appeals although those were filed in the year 2003. After the lapse of 8 years, undisputedly a long gap, now this assessee is seeking a favourable decision which may tantamount to re-writing the Statute. 8. An another feature of the Statue is worth to mention that vide section 253(5) of the I.T.Act the Appellate Tribunal has been given power to admit an appeal after the expiry of the relevant period, if satisfied that there is sufficient cause for not presenting it within that period. Relevant section is reproduced below:- Section 253(5) :- The appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not present it within that period. Somehow, this Tribunal is not enshrined with such judicial power in respect of a miscellaneous petition filed u/s.254(2) of the I.T.Act. If we are not given that power, then it is not expected from us to exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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