Agnity Technologies Pvt. Ltd v. Commissioner Of Income Tax-1Through

$~12 *IN THE HIGH COURT OF DELHI AT NEW DELHI+ITA 939/2016 AGNITY TECHNOLOGIES PVT. LTD...... AppellantThrough :Mr. Sanat Kapoor, Advocate versus COMMISSIONER OF INCOME TAX-1Through : ..... RespondentMr. Ruchir Bhatia, Senior StandingCounsel with Mr.Gaurav Khterapal,Advocate. CORAM:JUSTICE S.MURALIDHARJUSTICE PRATHIBA M. SINGH O R D E R%19.09.2017 CM APPL. 47641/2016 (delay in filing) in ITA 939/2016 1. There is a delay of 439 days in filing the appeal. The reasons given by theAppellant in this application is that it was pursuing an alternate remedy ‘byway of filing Miscellaneous Application before the ITAT to excludeBodhtree Consulting Ltd. from the list of comparables.' According to theAppellant, the ITAT had in other cases consistently has been taking a viewthat the said comparable should be excluded. 2. In support of the plea that the period during which the Appellant waspursuing the alternate remedy should be excluded in terms of Section 14 ofthe Limitation Act 1963 (LA), Mr. Sanat Kapoor, learned counsel for theAppellant, relied on the decision of the Supreme Court in M.P. Steel Corporation v. Commissioner of Central Excise (2015) 7 SCC 758. 3. The Court is unable to accept the submission that the application filedbefore the ITAT under Section 254 (2) of the Income Tax Act 1961 ('Act')was an alternate remedy to the filing of an appeal under Section 260 A of theAct. An application under Section 254 (2) of the Act is for rectifying'mistakes apparent from the record' which is much narrower in scope than anappeal under Section 260 A of the Act where an order of the ITAT can bechallenged on substantial questions of law. Secondly, it was always open tothe Appellant to have filed the appeal in this Court within the time stipulatedunder 260A of the Act and mention in the memorandum of appeal that itsapplication under Section 254 (2) of the Act is pending before the ITAT.The time period for filing an appeal under Section 260 A of the Act does notget suspended on account of the pendency of an application before the ITATunder Section 254 (2) of the Act. In the circumstances, the question ofinvoking Section 14 of the LA would not arise at all. The decision reliedupon by Mr. Kapoor has no application to the present case. 4. It is then submitted by Mr. Kapoor thatthe ITAT has been rejectingapplications filed under Section 254(2) of the Act on the ground that theapplicant has in the meanwhile filed an appeal in the High Court underSection 260 A of the Act. While the correctness of such an order ifchallenged would have to be examined on a case by case basis, it cannotpossibly constitute a sufficient justification for not filing the appeal underSection 260 A of the Act in time. 5. No satisfactory reason has been provided by the Appellant for theextraordinary delay of 439 days in the filing the appeal. 6. The application for condonation of delay is dismissed. Consequently, theappeal is dismissed. S.MURALIDHAR, J. SEPTEMBER 19, 2017dk PRATHIBA M. SINGH, J. ITA 939/2016