9911796707
TMI Blog2012 (6) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, the short-prayer through these two Miscellaneous Applications is to reinstate the said two appeals by recalling the said order of the Tribunal. 2. At the outset, before we proceed to decide the merits of the petition, we have noticed that the Registry has marked that these tow petitions are time-barred by 1 year 1 month and 10 days. The order of the Tribunal is dated 23.2.2007, however, the impugned petitions have been filed on 4.4.2012. 3. In respect of the delay in filing of the miscellaneous petition, ld.AR Mr.J.P.Shah has stated that the applicant had enquired from ITAT Website about the status of appeal and came to know that the ITAT "A" Bench Ahmedabad on 23/02/2007 has dismissed both the appeals. Thereafter on 19.9.2011, the applicant had requested the Registrar, ITAT to give a certified copy of the order and the evidence of service of notice. In response to the said letter, the Registry of ITAT vide letter dated 18/11/2011 asked the assessee to deposit the requisite fees for obtaining certified copy of the order. On submitting the challan, a certified copy of the order have been provided to the assessee on 18/11/2011. Mr.Shah has informed that the business of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The Applicant has therefore received the ITAT Order dated 23/02/2007 on 19/11/2011 only. In the aforesaid circumstances, the Applicant requests Your Honour to condone the delay in filing this Miscellaneous Application and humbly prays that, under the above stated facts and circumstances of the case and in the interest of substantial justice, the above stated ex-parte order passed by the Hon'ble Tribunal on 23/02/2007, may be kindly recalled and the matter be decided afresh after granting the Applicant, a proper and adequate opportunity of being heard and for which act of kindness the Applicant for ever shall remain grateful to your Honours." 4. The ld.AR has referred a Writ Petition (civil) 528 of 2002 of the Hon'ble Supreme Court of India in the case of D.Saibaba v. Bar Council of India & Anr. [2003] 6 SCC 186, date of judgement 6/5/2003 for the legal proposition that a decision can be said to be communicated. He has raised a question which was before the Hon'ble Court that how can a person aggrieved be expected to exercise the right conferred by any provisions of law unless the order is communicated to or is known to him either actually or constructively? Ld.AR has pleaded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Miscellaneous Application. 5. From the side of the Revenue, ld.Sr.DR Mr.P.L.Kureel has placed reliance on the language of Statute and argued that the Appellate Tribunal may at any time within four years from the date of the order can rectify the mistake. There is no mandate prescribed to condone the delay if a miscellaneous application has been filed after the expiry of 4 years from the date of the order. The Act has thus clearly used the terminology "date of the order" and not used the terminology "date of service of order". There should not be any stretching of the language of the Act. When an order has been signed by the Members of the Tribunal, then that is the date of the order which shall be taken into account for computing the time period as prescribed u/s.254(2) of the I.T.Act. 5.1. In response, ld.AR in his rejoinder has again referred the decision of D.Saibaba v. Bar Council of India & Anr. (supra) that where the law provides a remedy to a person, then the provision to be so construed in the case of ambiguity so as to make availing of the remedy practicable and the exercise of power conferred on the authority meaningful and effective. A construction which would render ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is the date of service of the notice of demand or in other cases date on which the order is served. As against that, u/s.254(2), the Statute has chosen not to compute the period of limitation from the date when an ITAT order is served, but the Statute has chosen to compute the time within four years from the date of the order. 6.3. Even for the purpose of filing an appeal to the Appellate Tribunal the period prescribed is 60 days from the date of communication of the order as per section 253(3); reproduced below:- Section 253(3) :- Every appeal under sub-section (1) or sub-section (2) shall be filed within sixty days of the date on which the order sought to be appealed against is communicated to the assessee or to the Commissioner, as the case may be : 7. On reading of these parallel sections, therefore it is evident that the Statute has either mentioned that the date on which the order sought to be appealed should be the date of communication, or the date when the order is served or the date of service of the notice of demand. However, the Statute has not given any such indication while drafting the language of section 254(2) of the I.T.Act rather it has plainly mentioned, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
