Shiva Educational Society v. Principal Commissioner Of Income Tax-Ii, Chandigarh

IN THE HIGH COURT OF HIMACHAL PRADESH ATSHIMLA ITA No.2 of 2023 Decided on: 31.10.2023 Shiva Educational Society ...Appellant Versus Principal commissioner of Income Tax-II, Chandigarh . ..Respondent CoramThe Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief JusticeThe Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge Whether approved for reporting? For the appellant: Mr. Vishal Mohan, Senior Advocate withMr. Praveen Sharma and Mr. AdityaSood, Advocates. For the respondent:Mr.Vinay Kuthalia, Senior Advocate withMs. Vandana Kuthalia, Advocate. M.S. Ramachandra Rao, Chief Justice (Oral) This ITA is preferred against the order dt. 6[th] June,2023, passed by Income Tax Appellate Tribunal, Chandigarh,rejecting the Miscellaneous Application filed by the assesseeseeking partial recall and rectification of its order passed in ITANo.490/Chd/2017 dt. 6[th] May, 2020. 2.The reasoning given by the said Tribunal for rejecting the application is that the Miscellaneous Application seeking partialrecall and rectification was filed on 29.08.2022 and was thus time barred by 267 days; that it was filed beyond the period oflimitation; and the Tribunal did not have the express power ofcondonation of delay, if the delay exceeded period of six monthsfrom the end of the month in which the order is passed as peramended Section 254(2) of the Income Tax Ax, 1961. 3.Learned counsel for the appellant sought to contendthat the Tribunal had wrongly noted the date of filing theMiscellaneous Application as 29.08.2022 and in fact the saidapplication had been filed by the assessee on 25.08.2021 as isevidenced by Annexure A-5 Defect Memo issued by the office ofsaid Tribunal on 02.09.2021. 4.Learned counsel for the appellant further placedreliance on the judgment dt. 10[th] January, 2022 of the SupremeCourt in Suo Motu Writ Petition (C) No.3 of 2020[1],wherein theSupreme Court had held that irrespective of period of limitationprescribed in any Statue for initiating any proceedings, on accountof COVID 19 Pandemic, steps can be taken for initiatingproceedings/appeals etc. even after 28.02.2022 by ignoring theperiod between 15.03.2020 and 28.02.2022 for the purpose ofcomputing the period of limitation. 5.This legal position is not disputed by learned counsel for the respondent-department though he stressed the point thatMiscellaneous Application was filed on 29.08.2022. 6.But having regard to Annexure A-5, we are of theopinion that the Tribunal had wrongly noted the date of filing of thesaid application as 29.08.2022 and that the said application hadbeen filed on 25.08.2021 itself, and would fall within the periodmentioned in the above Supreme Court order. If the period between06.05.2020 and 25.08.2021 is excluded on account of the SupremeCourt order, the application of the assessee would be well withintime. 7.Accordingly, the ITA is allowed. The impugned orderdt. 6[th] June, 2023 in M.A. no.12/Chd/2022 is set aside and thematter is remitted back to the said Tribunal for consideration afreshon merits. 8.Pending miscellaneous application(s), if any, alsostand disposed of ( M.S. Ramachandra Rao ) Chief Justice Chief Justice October 31, 2023 (vt) ( Jyotsna Rewal Dua )JudgeJudge