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TMI Blog2021 (2) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... Application for restoration was required to be filed on or before the expiry of six months from 20th Feb, 2018. In this regard, in the affidavit, the assessee has submitted that he has come to know of this order only recently as explained in the application for restoration and the applicant has also stated in detail the circumstances in which the application could not be made within six months. The Miscellaneous Application filed by the assessee is reproduced as under:- "1. The applicant above named submits this Misc. application u/s. 254(2) of the IT Act 1961 (for short "the Act") for restoration of the order of the Income Tax Appellate Tribunal, Ahmedabad Bench- C, Ahmcdabad passed on 20-2-2018 whereby the appeal of the applicant has been dismissed. 2. The applicant submits that being aggrieved and dissatisfied with the order passed u/s 250 of the Act on 12- 2-2016 by CIT (A)- GNR, it had preferred an appeal before the Appellate Tribunal wherein the applicant had challenged the addition of Rs. 10,46,032/- towards loans taken from parties and additions towards LTCG & STCG. 3. The aforesaid appeal has been dismissed in limine holding that notice was sent for hearing on 14-2- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Application has been made for recalling the order passed on 20th Feb, 2018 ex-parte without considering its merit and the said application was made under rule 24 of the ITAT Rules, 1963. It is further submitted that the assessee desires to file declaration under Vivad Se Vishwas Scheme in order to settle the matter under present law. The applicant has also stated that recently CBDT has come with clarification by way of FAQ on 4th December, 2020 in respect of Vivad Se Vishwas Scheme and considering the said FAQ No. 59 which requires the order of admission passed by Hon'ble Tribunal the applicant cannot file the said declaration under Vivad Se Vishwas Scheme . It is also submitted that the Vivad Se Vishwas Scheme is in operation upto 28th Feb, 2021 and the declaration cannot be filed till the payer for recalling ex-parte order is not disposed off. Vide ITAT interim order dated 12th Feb, 2021 clarification was sought on the merit of the application filed by the assessee. The relevant part of the interim order is reproduced as under:- "Aggrieved with order of the Id.CIT(A) dated 12.2.2016, the assessee has filed an appeal bearing ITA No.945/Ahd/2016. This appeal was listed for hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2019. Even thereafter, the assessee did not take any step for getting the Tribunal's order recalled. This application has been filed only after introduction of scheme for resolution of tax dispute by the Government, and thereafter the assessee filed an application for recall of the Tribunal's order. In this MA, the assessee has moved the present application fur hearing the appeal out-of-turn. As we have listed the MA on 18.12.2020 and partly heard this application, but necessary details as discussed in hearing were not submitted; though nothing has been recorded in the interim order about this fact; but since we were party to the hearing, and aware about the discussion undertaken by us. There is no change in the circumstances between 18th December till today except extension of limitation of the scheme from December to Jan, and thereafter to February. Therefore, the assessee has been making repeated requests for early disposal of his MA. 4. On due consideration of the above facts, and in the interest of justice, we again grant one more opportunity to the assessee for out-of-turn hearing. Let the main MA be listed for hearing on 22nd February, 2021. Early hearing appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 1-7-2019 a letter wherein he pointed out at para-3 that he would like to inspect and obtain certified copy of documents/information available on record of AO and he gave illustrative list" of such documents. -He was shown the penalty order for this year by AO so that he made application for rectification on same date. b. There after the applicant received from TRO G'NR a notice dt 11-9-2019 to treat him as defaulter in respect of outstanding demand for this year. c. After this notice TRO issued immediately on 9-10-2019 a recovery notice and followed by a summons dt. 18-10-2019. The applicant submitted a detailed explanation vide letter dt 22-10-2019 to TRO the circumstances leading to non-payment of so-culled dues wherein the applicant had stated that he was in process of reviving the appeal by Tribunal (para-3). The applicant has pointed out the financial status and virtually no business activity in last 4-5 years etc. d. AS if the aforesaid difficulties were not sufficient, the applicant received a show cause dt 5-12-2019 from PR CIT GNR to launch prosecution u/s 276C (2) of the Act for alleged willfully avoidance to pay taxes. The applicant furnished detailed reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and launching of prosecution proceedings were all the more reasons for making this application. Even if such scheme were not in operation, it was in the interest of the applicant to get this order restored and heard on merits- It will be appreciated that in case this application is dismissed on this ground, it will frustrate the entire objective to launch this scheme as stated in CEDT circulars no. 9/ 22-4-2020 and no. 21/4-12- 2020. Therefore taking into consideration the same, a lenient view of the matter is requested. The applicant relies upon the decision in case of M/S Kalra Papers Pvt Ltd v ITO ( WC no.9467/2020 dt 11-12-2020 ) wherein it was held that "We are also persuaded to allow the petition, in view of the undertaking given by the Petitioner that it would apply under the Vivad Se Vishwas' Scheme in the event the appeal is restored to its original number. The Petitioner's undertaking is taken on record and it shall be held bound by the same. The applicant submits that similar view is taken by this Tribunal in case of Dilip M. Shah v ITO (MA No. 55- 56/AHD/2019 dt 1-12-2020) iv Lastly, the applicant submits that when the Hon'ble Tribunal has passed ex-part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal file is hereby quashed and set aside. The order passed by the Appellate Tribunal dated 12.12.2014 dismissing the appeal for non-prosecution is also quashed and set aside. The original IT Appeal No.1263/AHD/2011 for A.Y. 2006-07 is ordered to be restored to its original file. The Appellate Tribunal shall fix the hearing of this appeal and dispose of the same in accordance with law. We expect the writ applicant this time to fully cooperate in the expeditious disposal of the appeal." The ld. counsel has also placed reliance on the decision of ITAT in the case of Shri Dilipbhai Mangaldas Shah Vs. ITO vide M.A. Nos. 55 & 56/Ahd/2019 in 2131 & 2132/Ahd/2015 dated 01.12.2020 2. Heard both the sides and perused the material on record. The appeal of the assessee was dismissed vide ITAT order dated 20th Feb, 2018 as none appeared on behalf of the assessee on the date of hearing. The assessee has explained the reason for not filing the Miscellaneous Application within six months from the end of the month in which the order was passed as elaborated supra supported by an affidavit and copies of other documents/details. The assessee has also pointed out that previous tax consultant has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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