TMI Blog2020 (3) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... ondonation of delay in case of MAs. Therefore, all the condonation of delay petitions are dismissed. Since at the threshold itself the condonation of delay petitions are dismissed, MAs become academic and therefore, they are also dismissed - All the condonation of delay petitions and MAs are dismissed. - MA Nos.12 to 14/NAG/2019 Arising out of ITA Nos.96 to 98/NAG/2010 - - - Dated:- 20-3-2020 - SHRI D.KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM Assessee by : S/Shri S.C. Thakar and R.S. Thakar Revenue by : Dr. Milind Bhusari ORDER PER PARTHA SARATHI CHAUDHURY, JM: There are three Miscellaneous Applications and corresponding three condonation of delay petitions filed before us by the assessee. 2. In this regard, at the very outset, ld. Counsel for the assessee invited our attention to the Writ Petition No.1529 of 2020 filed before the Hon ble Bombay High Court, Nagpur Bench, Nagpur, wherein the operative para 4 reads as under:- 4. In view of above, we issue the following directions: All the applications of the petitioner including application for condonation of delay and application for restoration of appeal shall be heard as soon a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confer power of condonation in case of MA to the Tribunal. The ld. DR strongly referring to clause (5) of section 253 of the Act, submitted that it is in case of appeal or cross-objection only that the Tribunal even after expiry of relevant period, may admit an appeal or permit the filing of Memorandum of cross-objection, if it is satisfied that there is sufficient cause for not presenting the said appeal or cross-objection within the due time. But in case of section 254(2) of the Act i.e. MA, there is no such power or provision given to the Tribunal for condonation of delay if the application is filed after the relevant period. 6. Both the parties heard. We have perused MAs and condonation of delay petitions and have given considerable thought to the various judicial pronouncements placed before us. In this case of assessee, as evident from record, the order of Tribunal dated 01.02.2013 was duly served on the assessee on 26.02.2013. This service was done as evident from Form No.36 on the address given by assessee to the Tribunal, which is as follows: Daryapur Shetkari Sahakari Ginning Pressing Factory Ltd., Banosa, Tq. Daryapur, Dist. Amravati. 7. However, in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easons for late filing of MAs but all these reasons are not supported by any evidence and the assessee was simply sleeping over the order of Tribunal for more than 2 years. That further, the judgment of the Hon ble Supreme Court which is strongly relied on by the assessee i.e. Collector, Land Acquisition vs. MST.Katiji Ors. (supra) is substantially distinguishable on facts with that of the case of assessee. In the case before the Hon ble Supreme Court, it is with regard to compensation in respect of acquisition of land for public purpose and there was delay of only 4 days. Per contra, in the present case of the assessee, it is with regard to MAs admission in spite of delay of 2 years 11 months and whether the Tribunal has got power to condone the said delay u/s 254(2) of the Act. We agree with the submissions of ld. DR highlighting provision of clause (5) of section 253 of the Act, wherein it is specific that in case of appeal or cross-objection, the Tribunal has power to condone the delay, if there is sufficient reasons provided before it, but on the other hand, in case of MAs u/s 254(2) of the Act, no such specific power has been provided to the Tribunal. Even at the time of he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he variation in the income before the DRP/AO within 30 days of the receipt of the draft order. 4. Before proceeding further, let us have a quick look at the following relevant dates of the case under consideration, which are material for our decision:- Date of the Draft order 21.12.2018 Date on which Draft order was received by assessee 24.12.2018 Date on which objections filed before DRP 24.01.2019 Date of the DRP direction 27.09.2019 Date of the final assessment order u/s 144C(13) 24.10.2019 5. As the draft order in this case was admittedly received by the assessee on 24.12.2018, the period of 30 days for filing Form No. 35A, in terms of sub-section (2) of section 144C, expired on 23.01.2019. As against this, the assessee actually filed Form No.35A on 24.01.2019, thereby causing a delay of one day in raising objections against the draft order. The DRP has canvassed a view that it has no power to condone the delay in as much as such power is absent i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal before the Tribunal within sixty days, sub-section (5) empowers the Tribunal to admit an appeal after the expiry of the period of sixty days. As against the power of the Tribunal to admit an appeal belatedly after the expiry of relevant period in terms of sub-section (5) of section 253A, no specific provision has been enshrined empowering the Tribunal to entertain a Miscellaneous Application u/s. 254(2) of the Act beyond the period of six months from the end of the month in which the order was passed. 9. Prior to the insertion of sub-section (2A) of section 260A by the Finance Act, 2010 with retrospective effect from 01-10.1998, no specific provision was there in the Act empowering a High Court to admit an appeal after the expiry of period of 120 days as referred to in sub-section (2) of section 260A. In the period pre-insertion of sub-section (2A), there was a cleavage of opinion as to whether a High Court can condone the delay beyond the period prescribed in sub-section (2) of section 260A. The full Bench of Hon ble Bombay High Court in CIT Vs. Velingkar Brothers (2007) 289 ITR 382 (Bom.) (FB) observed that sub-section (2) of section 260A does not make section 29(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stow upon itself the power to condone the delay. The fortiori is that any application moved after the prescribed period, in the absence of an express provision in this regard, is liable to be dismissed as time barred. 12. Section 144C(2) of the Act provides a period of 30 days for filing of objections before the DRP. Unlike certain other provisions empowering the respective competent authorities/forums to condone the delay, no empowerment has been endowed upon the DRP to condone the delay and accept Form No. 35A beyond the prescribed period of 30 days. Sub-section (2) of section 144C not only uses the word shall requiring the assessee to file objections before the DRP within 30 days but also does not contain any provision authorizing the DRP to condone the delay. In the absence of such an express power to condone the delay, in our considered opinion the DRP rightly held itself to be incompetent to condone the delay. 13. One needs to appreciate that either the power to condone the delay exists or does not exist. It cannot be a hybrid situation in the sense of conferring a bridled power of condoning the delay in favour of the competent authority/forum so that the delay ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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