Ms. Nazia Wani, Adv v. Union Of India And Ors

Serial No. 102 AFTER NOTICE IN THE HIGH COURT OF JAMMU AND KASHMIRAT SRINAGAR WP (C) No. 390/2021 CM No. 1237/2021 Altaf Hussain Shah Petitioner(s) Through:- Ms. Nazia Wani, Adv. Vs. Union of India and Ors. Respondent(s) Through:- Mr. T. M. Shamshi, ASGI. CORAM:- Hon’ble Mr. Justice Ali Mohammad Magrey, Judge. Hon’ble Mr. Justice Puneet Gupta, Judge. (O R D E R)18-03-2021 01.Petitioner, an income tax assessee, is aggrieved of the order dated 29.01.2020 passed by the Commissioner of Income Tax (Appeals), Jammu, communicated to the petitioner vide communication bearing No. 2019-2020/4454 dated 03.03.2020 on the grounds detailed out in the writ petition with particular reference of non-consideration of the re-admission of the appeal under Order 41 Rule 19 of the Civil Procedure Code, 1908. 02.We have gone through the order impugned and on examination and consideration, we find that the order is appealable before the Appellate Tribunal under Section 253 of the Income Tax Act, 1961 (hereinafter called as “The Act”). Learned counsel for the appellant submits that the approach adopted by the Commissioner of Income Tax (Appeals), Jammu in not admitting the appeal which was admittedly dismissed for non prosecution has resulted in grave injustice as the petitioner has not been heard on merit, therefore, it is not a decision within the meaning of the provisions of the Act which calls for further appeal under Section 253 of the Act. 03.We have heard learned counsel for the parties and considered the matter. We feel that without going into the merits of the case, recording of any finding or making an observation will effect the rights of the parties, therefore we are only restricting our decision to the extent of petitioner having the remedy to challenge the order on the grounds available under law as contended in the writ petition. However, learned counsel has brought attention of the Court towards the application of Sub Section 3 of Section 253 of the Act which provides that the appeal can be filed within a period of 60 days of the date on which the order sought to be appealed against is communicated to the assessee. Learned counsel further submits that admittedly order was communicated to petitioner on 3[rd] March 2020 which was received on 5[th] March 2020 therefore the period for filing the appeal reckons from 5[th] March, 2020. Learned counsel submits that in essence the period has expired on 5[th] May 2020 but the petitioner could not file the appeal on account of COVID-19 pandemic. Learned counsel further submits that Hon’ble Supreme Court while registering this difficulty as already issued direction to the Appellate Tribunal in Suo Moto Writ Petition (Civil) No. 03 of 2020 to exclude the period of limitation from 15.03.2020 till 14.03.2021. In view 3 of the application of the order of the Supreme Court the petitioner has yet two months to file appeal before the Tribunal. 04.In view of the above, we dispose of the writ petition with liberty to the petitioner to file appeal before the Appellate Tribunal, Amritsar and the period of limitation shall start from 15[th] March, 2021 till the time. 05.Disposed of as above. . (Puneet Gupta) Judge (Ali Mohammad Magrey) Judge SRINAGAR 18.03.2021 “Aasif”