TMI Blog2019 (3) TMI 1700X X X X Extracts X X X X X X X X Extracts X X X X ..... iled beyond the statutory period of six months. 02. The Ld. AR had submitted that an affidavit has been filed explaining the reasons for the delay in filing the MP and submitted that the MP may be allowed after condoning the delay. 03. Per contra, the Ld. DR opposed to entertaining the MP as the MP was filed beyond the limitation period and the Tribunal being a creature of the statute do not have inherent power to condone the delay and relied on the decision of the coordinate bench in the matter of MP.325/Bang/2018, dt. 25.01.2019 in the matter of Karaturi Global Services. 04. We have heard the rival submissions and perused the material on record. Undoubtedly the present MP is filed belatedly as the order of the Tribunal was passed on 15.09.2017 and the MP was filed on 04.12.2018. Thus there is a delay of eight months and four days in filing the present MP. The coordinate bench in the matter of Karaturi Global Services (supra) had taken the same view, which is as under : 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inbelow from page no. 21 of the paper book. 1. Whether on facts and circumstances of the case, the Tribunal was right in recalling its original order which was passed by it after considering the issue on merits? 2. Whether on facts and circumstances of the case, is order of the Income Tax Appellate Tribunal, recalling its earlier order not amount to review of its original order? 8. From the above two questions of law raised before Hon ble Madras High Court, it is seen that in this case, this is not the issue in dispute as to whether the Tribunal can recall the ex-parte Tribunal order by deciding an M.P. filed by the assessee after expiry of limitation period. The issue in dispute in that case was whether the Tribunal can recall the Tribunal order in which the 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 Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of which the original authority has passed the order for levying of tax is held to be ultra vires to Section 67 of the Act. Further, the matter may fall in the realm of correct interpretation of Section 67 as to whether the expenses reimbursed by the consumer to the service provider, can be included for the purpose of computation of the service tax or not. We do not propose to express any further view on the said aspects in view of the order which we may pass herein after, but suffice it to observe that in view of the decision of the Delhi High Court, there was a strong case on merits on the part of the petitioner to be considered by the taxing authority. Unfortunately the decision of the Delhi High Court though was specifically brought to the notice of the original authority 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld depend on the satisfaction of the High Court that there was not just a question of law, but a substantial question of law. This is not a case where there is an automatic appeal provision available. It cannot be said that the petitioner had an equally efficacious alternative remedy. 10. Article 226 of the Constitution of India does not impose any limitation on the power of the High Court to issue writs, even when there is an alternative remedy. Where there is an efficacious alternative remedy this Court refrains from exercising its extra ordinary jurisdiction. This Court would not reject an application under Article 226 of the Constitution of India, where the remedy, if any, of appeal is uncertain as in the case of an appeal under Section 260A of the 1961 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been filed in time and we consider and decide the same, it has no merit because in the M. P., no reasoning is given about non appearance of the assessee or his AR on the appointed date of hearing to argue the appeal. As per Para 2 of the present M. P., the assessee says that on 22nd November, 2011, Mr. Hari Upadhyaya, the senior Accounts officer of the assessee company appeared to file an application for adjournment but the same was denied by the tribunal and the appeal was heard ex parte. This is to be noted that this is M. P. is drafted and filed very casually. The date of hearing as per the tribunal order was 22.11.2016 but the assessee says in the M. P. that it was 22.11.2011. This appears to be a typing mistake but the same should have been rectified before signing and filing. Granting of adjournment on request cannot be taken as assured. In the Para 3 of the M. P., the assessee says that the assessee company had not decided on the counsel to represent them and had not filed the paper book for hearing. Both these contentions are factually incorrect because as per the appeal file, it is seen that Letter of Authorisation is already available on record as per which, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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