Radheshyam Patel vs Union Of India
2023 Latest Caselaw 2315 MP

                                  1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                       AT INDORE
                        BEFORE
 HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                           &
    HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
                    ON THE 9 th OF FEBRUARY, 2023
                  INCOME TAX APPEAL No. 8 of 2023

BETWEEN:-
RADHESHYAM PATEL S/O RAMESHWAR PATEL, AGED
56 YEARS, OCCUPATION: FARMER 1-2, PRAGATI VIHAR
COLONY, BICHOLI MARDANA, INDORE (MADHYA
PRADESH)

                                                               .....PETITIONER
(DR. VIVEK PANDEY, LEARNED COUNSEL FOR THE PETITIONER .
)

AND
1.    UNION   OF INDIA THROUGH    PRINCIPAL
      COMMISSIONER OF INCOME TAX 1 AAYKAR
      BHAVAN,  HOSHANGABAD  ROAD,   BHOPAL
      (MADHYA PRADESH)

2.    COMMISSIONER OF INCOME TAX(DR) CGO
      COMPLEX- A- WING AAYAKAR BHAWAN NEAR
      WHITE CHURCH, INDORE (MADHYA PRADESH)

                                                            .....RESPONDENTS
(MS VEENA MANDLIK, LEARNED COUNSEL FOR THE RESPONDENT)



      This appeal coming on for admission this day, JUSTICE SUSHRUT
ARVIND DHARMADHIKARI passed the following:
                                   ORDER

Heard on the question of admission.

This appeal u/S 260A of the Income Tax Act, 1961(for short 'the Act of 1961' hereinafter) has been filed assailing the order dated 26.09.2022 passed in

M.A. No. 13/Ind/2021 by the Income Tax Appellate Tribunal(for short ITAT hereinafter), Bench at Indore wherein miscelleneous application was filed for condoning the delay in filing the appeal before the ITAT. The miscellaneous appeal was dismissed on the ground that the learned counsel for petitioner could not attend the proceedings and there was no one to press the application. In fact, the miscellaneous application was filed by the appellant seeking rectification and recalling of the order dated 13.07.2015 passed by the ITAT wherein the issue raised in the appeal bearing No. 206/IND/2013 for the assessment year 2007-08 was dismissed for want of prosecution.

2 . While deciding the miscellaneous appeal, the ITAT dismissed the

same on the ground of delay of 5 years 06 months and 23 days in preferring the miscellaneous appeal. It was held from the records that initially during the proceeding of quantum appeal on number of occasions the matter was fixed for hearing, but no one appeared on behalf of the appellant. Under the circumstances, the coordinate Bench was pleased to dismiss the appeal with the firm belief that the assessee is not interested in pursuing the appeal. As per Section 254(2) of the Act of 1961, the Tribunal has no power to condone the delay. Therefore, miscellaneous appeal being not maintainable was dismissed.

3. Being aggrieved, the appellant approached this Court in W.P. No. 27861/2022 which came to be decided vide order dated 19.12.2022 holding that writ petition is not maintainable against the order in original passed by the ITAT dated 13.07.2015 as well as the order passed in M.A. No. 13/Ind/2021. However, liberty was granted to the appellant to file the present income tax appeal u/S 260A of the Act of 1961.

4. The facts of the case reveal that the appellant had filed an application

u/S 254(2) of the Act of 1961 stating that he was not able to attend the hearing and the ITAT dismissed the case of the appellant in his absence. However, earlier the matter was adjourned sine die since the ITAT was not available. No notice for next hearing was received by the appellant.

5. Learned counsel for the appellant contended that:

(i) the Apex Court in the case of CIT Vs. S. Cheniappa Mudaliar (1969) 74 ITR 41 (SC) has held that "the mandate of Section 254(1) of the Act of 1961 is to dispose of an appeal on merits, even in the absence of the assessee."

(ii) The ITAT also did not consider that the Covid-19 period was not to be counted for the purpose of limitation.

(iii) Due to death of the lawyer after long illness, unavailability of documents, sensitiveness of the IT papers, miscommunication from the department etc. prevented the appellant to appear which can be termed as 'sufficient cause' to restore the appeal and hear the same on merits.

6. The facts of the case further reveal that in respect of the appellant's appeal, an ex-parte order was passed on 13.07.2015 and miscellaneous application was preferred u/S 254(2) of the Act of 1961 which was decided vide order dated 26.09.2022. The same was dismissed as it was preferred after expiry of six months on account of the fact that Section 254(2) of the Act of

1961 provides for a limitation of six months.

7. Section 254(2) of the Act of 1961 prior to the amendment reads as under:-

"254(2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any

mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard [Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.]"

Section 254(2) of the Act of 1961 after amendment reads as under:-

254(2) The Appellate Tribunal may, at any time within six months from the end of the month in which the order was passed, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer:

Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard

[Provided further that any application filed b y the assessee in this sub-section on or after the 1stday of October, 1998, shall be accompanied by a fee of fifty rupees.]

8. Keeping in view the aforesaid judgment passed in the case of CIT Vs. S. Cheniappa Mudaliar (supra), certainly the right to file appeal cannot be extinguished as the appellant would be left remedyless. Resultantly, the impugned orders dated 26.09.2022 passed in M.A. No. 13/Ind/2021 and 13.07.2015 passed in ITA No. 206/Ind/2013 are hereby set aside and the present appeal stands allowed.

10. The matter is remanded back to the ITAT to decide the appeal bearing ITA No. 206/Ind/2013 on merits after hearing all concerned, as expeditiously as possible, preferably within a period of three months from the date of receipt of certified copy of the order .

11. The parties are directed to appear before the ITAT on 20.02.2023.

13. With the aforesaid, appeal stands disposed of. C.C. As per rules.

           (S. A. DHARMADHIKARI)                         (PRAKASH CHANDRA GUPTA)
                    JUDGE                                         JUDGE
      sh

SEHAR HASEEN
2023.02.11
19:13:18 +05'30'