9911796707
TMI Blog2016 (7) TMI 1677X X X X Extracts X X X X X X X X Extracts X X X X ..... tion or not ? If they are treated as barred by limitation, automatically these M.As deserve to be dismissed as un-admitted. 2. However, the case of the Ld. Counsel for the assessee is that though the appeals are disposed of by the Tribunal the order passed therein cannot be treated as an order passed under law inasmuch as Section 254(1) mandates disposal of an appeal on merits even if no one appeared for the assessee whereas the impugned order was passed by dismissing the appeal 'for want of prosecution'. 3. Brief facts which are necessary for disposal of these matters are set-out hereunder. There are total 17 appeals out of which 14 appeals are filed by the Assessees and three appeals are filed by the Revenue. Some of the appeals were filed way back in 1996/1997. Soon-after numbering the appeals, most of the appeals were posted for hearing in 1998 and from then onwards, assessees' counsels were seeking adjournments from time to time and on 22.07.1998 it was specifically mentioned that the cases would be adjourned 'finally' on the undertaking of assessees' Counsel that he would not be seeking further adjournments. But again on 07.08.1998, the assessees sought one more adjournment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is busy in audit work or in some other professional work. All these only go to show that both, for the assessees as well as the chartered accountant, matters pending before the Tribunal have the last priority amongst all these business and professional engagements and for twelve long years no priority status has been accorded to the Tribunal. As a matter of fact, the liberal attitude of the tribunal has been taken for granted and the assessees are still stretching it as far as they can without realising the tolerance threshold of the Tribunal and the level of its elasticity. Thus, considering the history of adjournments and the conduct of the assessees, we reject the request for adjournment and dismiss all the appeals of all the assessees for want of prosecution." 4. While dismissing the appeals filed by the assessees the Tribunal observed that there were three appeals filed by the Revenue also in the case of Mahaveer Combines P. Ltd., and Unique Plastics P. Ltd., wherein the department challenged the deletion of the addition made on protective basis particularly on account of the fact that the additions made on substantive basis are pending before the Tribunal. In this regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited case, the Hon'ble Supreme Court observed that the provisions of Section 254(2) consists of two parts i.e., first part of section 254(2) refers to suo motu power of rectification by the Tribunal whereas the second part refers to rectification and amendment of an application being made by the A.O. or the assessee pointing out the mistake from the record. The application having been filed within 04 years, merely because the Tribunal had taken time to dispose of an application the High Court should not have held that the application filed by the party cannot be entertained beyond the period of 04 years. The Apex Court also approved the decision of Hon'ble Rajastan High Court in the case of Harshavardhan Chemical & Minerals Ltd., vs., Union of India & Another (2002) 256 ITR 767 (Raj.) wherein the Court observed that if an application is moved within the period as allowed i.e., 04 years, the Tribunal may, at any time, dispose of the application even if the time taken is beyond 04 years. Ld. Counsel appearing on behalf of the assessees submits that the aforecited decisions referred to the suo motu powers of the Tribunal to consider the matter on merits any time even after the expiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bound to pass an order under section 254(1) failing which the assessee is entitled to file a petition under section 254(2) for recall of the 'irregular' order passed by the Tribunal. He also relied upon the observations made by Lord Denning to submit that each case depends on its facts and one should avoid the temptation to decide cases matching colour of one case against the colour of another. 5. The Ld. D.R., in his written submissions contended that when an assessee takes a conscious decision of not preferring an appeal even after lapse of 04 years, he should be treated as guilty of negligence, in which event, a petition for condonation of delay should not be permitted. In this regard, he referred to the decisions of the ITAT i.e., SS Builders vs. ITO (210-TIOL-714-Mum.), ITAT Hyderabad Bench decision in the case of T. Kishan reported in 23 taxmann.com 383. He has also relied upon various decisions of High Courts to submit that if an assessee follows lackadaisical approach, by not challenging the order within the time frame prescribed, the authorities concerned should not extend the benefit of condonation in such cases. He has also highlighted the reasons given by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appeals and the so-called order deserves to be recalled. 7. In our considered opinion, the assessees plea deserves to be rejected on the face of it for two reasons. Firstly, if a procedure has been followed by the Tribunal - dismissing the appeals for want of prosecution - which, in the opinion of the assessees herein, is contrary to the decisions of the Apex Court, the proper remedy would be to challenge the said order before the Hon'ble High Court since to our limited knowledge Article 227 of the Constitution of India empowers a party to request the Hon'ble High Court to quash any order passed by the Tribunal which is contrary to law, while exercising it's supervisory jurisdiction. The assessees, for the reasons best known to them, have not chosen to prefer either appeals or a writ petition to invoke the jurisdiction of the Hon'ble High Court either under section 260A of the I.T. Act or under Article 227 of the Constitution of India. In otherwords, the assessees having not chosen to pursue the remedy available, they cannot - after long lapse of time - claim that the order passed by the Tribunal is contrary to law. In the case of Parsuram Potteries Works Co. Ltd., vs. ITO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not appeared. This observation of Justice Hidaytullah was approved by the Hon'ble Supreme Court in Dr. P. Nalla Thampy Thera vs. B.L. Shankar 1984 (Supp.) SCC 631. In the case of New India Assurance Co. Ltd., vs. R. Srinivasan (2000) 3 SCC 242, the Supreme Court observed that every judicial body or authority inherently possesses the power to dismiss a case in default. These decisions were referred to by the ITAT, Mumbai Bench in the case of Bharat Petroleum Corporation Ltd., vs. ACIT (MA.No.514/Mum/2012) wherein the Tribunal observed that the Rules do not circumscribe the jurisdiction of the Tribunal conferred by the statute and if the assessee is habitually taking adjournments, despite granting sufficient time, the assessee is responsible for the dismissal of the appeals for non-prosecution and therefore, the Tribunal cannot be found to have committed a mistake. This decision was affirmed by Hon'ble Mumbai High Court (supra). 7.3. In the M.As filed before us the assessees have filed the applications under Rule 24 of the I.T. Rules for which the assessees have to furnish proper reasons for non-appearance on the dates fixed for hearing. The explanation given on behalf of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittedly, the applications were filed beyond period of 04 years in which event the Tribunal had no power to admit the M.As in the light of plain language of the provisions of section 254(2) of the I.T. Act. 7.3.2. As already discussed hereinbefore, if the assessees seek to contend that these are not applications filed under section 254(2) then the remedy lies elsewhere and the assessees ought to have challenged the orders passed under section 254(1) at an appropriate Forum. But the assessees chose not to challenge the common order passed by the Tribunal. As rightly pointed out by the Hon'ble Apex Court in the case of Parsuram Potteries Works Co. Ltd., vs. ITO (cited supra), there should be a point of finality in all legal proceedings and stale issues should not be re-activated beyond a particular stage even if on a particular aspect the Court may have a sympathetic view on the party. 7.4. Before parting, we may observe that the Tribunal is a final fact finding authority and matters involving facts can be decided on merits only when facts are placed on record. In these group of matters, additions were made consequent to search action conducted on 14.09.1995 jointly in the case of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformity with the letter of the law. The statute prescribed period of 04 years within which a M.A. can be filed by an assessee and no power is vested in the Tribunal to admit any M.A. filed beyond the period of 04 years. Such being the case, the M.As. filed after period of more than 07 years and nearly 08 years deserve to be dismissed as un-admitted. 7.6. On a conspectus of the matter, we hold as under : (1) The impugned order was passed by the Tribunal under section 254(1) of the I.T. Act and in the given circumstances, dismissal of the appeals is the only conclusion that can be drawn which could have been challenged by the assessees within a period of 04 years and beyond such period the Tribunal has no power to condone the delay and therefore, the M.As are not maintainable. (2) Even if it is presumed that the Tribunal has got the power to condone the delay the reasons given by the assessees herein are vague and not supported by proper evidence and therefore, it has to be concluded that the assessees have no sufficient cause for the delay in filing M.As. (3) If the assessees claim that the common order passed by the Tribunal in 2008, dismissing the appeals for want of prosecut ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
