TMI Blog2019 (1) TMI 1596X X X X Extracts X X X X X X X X Extracts X X X X ..... the four judgements cited by assessee is rendering any help to assessee in the present case. In fact as per the judgement of Hon'ble Karnataka High Court, the issue is covered against the assessee because in this case, it was held by Hon'ble Karnataka High Court that the Tribunal cannot go beyond the provisions of section 254(2) and condone the delay in filing the M.P. Hence by respectfully following this judgement of Hon'ble Karnataka High Court, we hold that the present M.P. filed by the assessee is time barred and the same is not admissible. Even Non finalization of counsel and non filing of paper book cannot be considered as a reasonable cause for non appearance on the date of hearing. - the M.P. filed by the assessee is dismissed. - M.P. No. 325/Bang/2018 (in IT(TP)A No.104/Bang/2016) Assessment Year : 2011-12 - - - Dated:- 25-1-2019 - Shri Arun Kumar Garodia, Accountant Member And Shri Laliet Kumar, Judicial Member Assessee by: Shri Suresh Muthukrishnan, CA Revenue by: Shri Vikas K. Suryawanshi, Addl. CIT (DR) ORDER Shri A.K. Garodia, This M.P. is filed by the assessee requesting for recall of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that M.P. is time barred and hence, not admissible. Regarding four judgements cited by ld. AR of assessee, he submitted that these judgements are not applicable in the facts of present case. 5. We have considered the rival submissions. The facts are not disputed that the impugned Tribunal order is dated 22.11.2016 and the present M.P. had been filed by assessee on 08.10.2018 and as per the provisions of section 254(2) after amendment, the M.P. can be filed by the assessee within six months from the end of the month in which the Tribunal order has been passed. Therefore, the present M.P. could have been filed by the assessee up to 31.05.2017 and therefore, the present M.P. of assessee is time barred. In light of these facts, now we examine the applicability of various judgements cited by ld. AR of assessee. The first judgment cited by him is the judgment of Hon ble Madras High Court rendered in the case of S.P. Balasubrahmanyam vs. ACIT (supra). In this case, the Tribunal order was dated 18.07.2011 and the M.P. was filed by the assessee on 24.07.2015. Hence there was a delay of just 6 days as noted by Hon ble Madras High Court in Para no. 21 of this judgment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issue was decided on merit. Since the facts and issues are different, this judgement of Hon ble Madras High Court is not relevant in the present case. 9. The third judgment cited before us is the judgement of Hon'ble Karnataka High Court rendered in the case of Sri Muninaga Reddy Vs. ACIT (supra). In this case, the Tribunal order was dated 13.01.2015 and the M.P. against this Tribunal order was filed by the assessee on 30.12.2016 and as per the Tribunal order in M.P. dated 21.06.2017, the M.P. of assessee was dismissed as barred by limitation. Against this order of Tribunal in M.P. proceedings, the assessee filed a Writ Petition before Hon'ble Karnataka High Court. In our considered opinion, paras 9 and 10 of this judgement are very much relevant and hence, we reproduce the same hereinbelow for ready reference. 9. It is also not in dispute that the Tribunal proceeded to dismiss the misc.petition mainly on the ground that the Tribunal cannot condone the delay of more than six months in view of the provisions of Section 254(2) of the Act and proceeded to dismiss the application. It is also not in dispute that during the process, there was a dela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the reply to the show cause notice, in the impugned order of the original authority, there is no reference whatsoever. Under these circumstances, we find that the case may fall in the exceptional category for exercise of the power under Article 226 of the Constitution. 10. In view of the dictum of the Division Bench of this Court stated supra, the petitioner has made out a case that his case falls under exceptional category for exercising power under Articles 226 and 227 of the Constitution of India to interfere with the order passed by the Tribunal dismissing the Misc. Petition only on the ground of delay. 10. From the above paras of this judgement of Hon'ble Karnataka High Court, we find that it was held by Hon'ble Karnataka High Court in this case that under the provisions of section 254, the Tribunal cannot go beyond the provisions of the said section as per which the Tribunal cannot condone the delay of more than six months. But it was held that under Articles 226 and 227 of the Constitution of India, Hon ble High Court can condone the delay and accordingly, Hon'ble Karnataka High Court allowed the Writ Petition holding that the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 Act which depends on the subjective satisfaction of the Division Bench of the High Court, of existence of a substantial question of law. 11. In any case, there are at least 3 exceptions to the rule of alternative remedy. A writ application might be entertained where the order is in violation of principles of natural justice, where the order has been passed under a law which is ultra vires or is otherwise without jurisdiction or in case of an order which is perverse. The order impugned is patently repugnant to Section 254 of the 1961 Act read with Rule 24 of the 1963 Rules. 12. The writ petition is allowed and the impugned order cannot be sustained and the same is set aside. The learned Tribunal is directed to consider the matter on merits and take a fresh decision in accordance with law, preferably within 45 days from the date of communication of this order. Consequently, W.M.P.No.10105 of 2018 is closed. 12. As per the first Para of this judgment, it is noted by Hon ble Madras High Court that the tribunal dismissed the appeal of the assessee on 20.06.2017v on the ground that none appeared on behalf of the assessee and the short question involved ..... X X X X Extracts X X X X X X X X Extracts X X X X
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