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TMI Blog2013 (11) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... e) Limited. [1991 (5) TMI 120 - ITAT DELHI-D] - the order sought to be recalled had been passed ex parte and had not been adjudicated on merits, therefore the order was recalled as the assessee was prevented by a reasonable and sufficient cause for not putting up the appearance on the date fixed for hearing - Therefore, in the interest of natural justice - the order for hearing of the appeal on merits was recalled - The Registry was directed to fix the appeal on out-of-turn basis within a period of three months - The Registry was also directed to serve the notice at the changed address of the assessee, as given in the Affidavit filed along with the present miscellaneous application – Decided in favour of Assessee. - IT Appeal No. 6756 (Mum) of 2002 - - - Dated:- 27-2-2013 - P.M. JAGTAP and AMIT SHUKLA , JJ. For the Appellant : Shashi Tulsiyan. For the Respondent : Dinesh Kumar. ORDER:- PER : Amit Shukla By way of this miscellaneous application, the assessee seeks restoration of the appeal in ITA no. 6756/Mum/2012, which was dismissed ex-parte by the Tribunal for non-prosecution, vide order dated 4th August, 2006, for assessment year 1990-91. 2. The Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted a detail chart showing dates and events right from the date of filing of appeal to the date of filing of the present application. The said chronology of dates and events, for better appreciation of the facts in the present case, are reproduced below:- Date Particulars of Event 05/12/2002 Appeal was filed before the Hon'bie ITAT the fate of which was totally unknown to the assessee. 04/08/2006 The Hon'ble ITAT noted that the appeal was fixed for hearing on 2811.2005, 05.01.2006, 21.02.2006 and 13.04.2006 but none appeared for the hearing and therefore passed its order dismissing the appeal for non-appearance. 11/01/2011 Public Notice was given In Navbharat Times for sale of Office Premises of the assessee for realising the tax dues of the assessee for A.Y. 1990-91 which led the assessee to understand that the pending appeal for the A.Y. 1990-91 may have been disposed off without service of the Order or any notices in connection thereto. 20/01/2011 Assessee's Office premises was sold by the Income Tax Department for Rs. 20 Lacs. 14/03/2011 Assessee was provided with the Challan o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the date of order" appearing in section 254(2), should be reckoned from the date on which the order was communicated to the Assessee. The said sub-section does not lay down any time period for filing of the application for rectification. In support of the legal connotation of the phrase "date of order", he relied upon various Supreme Court and High Court decisions that the "date of order" has to be construed as the date on which the party has received the order or the same has been communicated to the party. The judgments relied upon by him, are as under:- (i) D. Saibaba v. Bar Council of India [2003] 6 SCC 186, which was rendered in the context of section 48AA of the Advocates Act, 1961, which has similar term; (ii) Madan Lal v. State of U.P., AIR 1975 SC 2085, which was rendered in the context of section 17 of the Indian Forest Act, 1927; (iii) Vijay Kumar Ruia v. CIT[2011] 334 ITR 38; and (iv) Petlad Bulakhidas Mills Co. Ltd. v. Raj Singh[1959] 37 ITR 264 (Bom.), which was rendered in the context of section 33A(2) of the Income-tax Act, 1922. 8. In all these judgments, he submitted that the Courts have invariably held that wherever the statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the terms of section 254(2) after the expiry of limitation period of four years from the date of order passed by the Tribunal or not. In the present case, it has not been disputed that the impugned order 4th August, 2006, passed by the Tribunal was not communicated to the Assessee prior to 17th February, 2012. The Assessee, in the present case, is a completely blind man of more than 62 years of age, who has filed its appeal before this Tribunal on 5th December, 2002. On a perusal of the memorandum of appeal in Form no. 36, it is seen that the address for communication has been mentioned as "Shri Pawan Kumar Jain, C/o M/s. Shankarlal Jain Associates, 12, Engineer Building, 265, Princes Street, Mumbai 400 002". This is the address of the Chartered Accountant, who was looking after the taxation matter of the Assessee. It has been deposed by the assessee that the said Chartered Accountant has not communicated either the notice of hearing or the order passed by the Tribunal, which has not been controverted before us. Under these circumstances, whether the Assessee is entitled to file an application for recalling of the impugned order or for rectification of mistake apparent fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's award' used in the proviso to section 18 in a literal or mechanical way. .. where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned. (Emphasis added] 13. A similar question had again come up for consideration before the Hon'ble Supreme Court in Madan Lal (supra). In this case, the Hon'ble Supreme Court was dealing with the starting point of limitation for the purpose of filing of an appeal under the Indian Forest Act, 1927. Section 17 of the Indian Forest Act prescribes a time-limit of three months "from the date of order for presenting the appeal". The Hon'ble Supreme Court interpreted the said expression in the following manner:- "The Act we are concerned with does not state what would happen if the Forest Settlement Officer made an order under section 11 without notice to the parties and in their absence. In such a case, if the aggrieved party came to know of the order after the expiry of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt came to know of the order and "the right of appeal granted to the Department should he determined on that very basis." 14. In an another judgment, the Hon'ble Supreme Court in D. Saibaba (supra), while interpreting the expression "sixty days from the date of the order" used in section 48AA of the Advocates Act, 1961, observed as under:- "So far as the commencement of period of limitation for filing the review petition is concerned we are clearly of the opinion that the expression 'the date of that order' as occurring in section 48AA has to be construed as meaning the date of communication or knowledge of the order to the review-petitioner. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart." [Emphasis added] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dbhai H. Shah (supra), it is noticed that the Special Bench, in Para-32, has clearly observed that they are not expressing any opinion on the issue whether the period of limitation should be counted from the service of the order when the rectification is sought. Therefore, the decision of Special Bench as relied upon by the learned Departmental Representative will not be applicable in the present case. 18. Thus, looking to the facts of the case, we hold that the date of order, as envisaged in section 254(2) should be construed to mean the date when the order is received or communicated to either party. In this case, when the Assessee has received the order on 17th February 2012, the Assessee is well within the limitation to file the present miscellaneous application within the scope of section 254(2) of the Act, for recalling of the ex parte order. 19. Since the order sought to be recalled has been passed ex parte, applying the decision of Multiplan India (P.) Ltd. (supra), and has not been adjudicated on merits, therefore, we recall the order dated 4th August, 2006, as the assessee was prevented by a reasonable and sufficient cause for not putting up the appearance on the date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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