The main legal point established is that the dismissal of an appeal for non-prosecution should not result in a failure of justice, and the delay in filing a miscellaneous petition can be condoned under Articles 226 and 227 of the Constitution of India.

JUDGMENT :

S. Sujatha, J.

The petitioner has challenged the order passed by the Income Tax Appellate Tribunal ('Tribunal' for short) under Section 254(2) of the Income Tax Act, 1961 ('Act' for short) relating to the assessing year 2011-12 in Miscellaneous Petition (MP) No.325/Bang/2018 dated 25.01.2019.

2. The petitioner is a company engaged in the business of floriculture, ISP Services, trading activity of retail flower business an project services. It appears that the petitioner company has filed its return of income for the assessment year 2011-12 on 30.11.2011 declaring the income of Rs.67,26,631/-.

3. On the draft assessment order passed under Section 143(3) r/w Section 144C of the Act pursuant to notice issued under Section 143(2) of the Act, the petitioner had approached Dispute Resolution Panel (DRP) and filed its objections, which came to be disposed of exparte on 24.11.2015.

4. Being aggrieved, petitioner filed the appeal before the Tribunal, which came to be dismissed on the ground that there was no representation by the assessee on the date of hearing. Further the petitioner had filed miscellaneous application before the Tribunal under Rule 24 of the Income Tax Appellate Tribunal Rules, 1963 ('Rules' for short) to condone the delay of 497 days.

5. Tribunal dismissed the said miscellaneous application mainly on the ground that there is no competency for the Tribunal to condone the delay beyond 6 months. Hence this writ petition.

6. Learned counsel appearing for the petitioner placing reliance on the judgment of Division Bench of the High Court of Madras in the case of SSMT. RITHA SABAPATHY vs. DEPUTY COMMISSIONER OF INCOME TAX, 2019 (308) CTR(HC) 417submitted that Tribunal dismissed the appeal for want of prosecution is contrary to the Rules itself. The binding responsibility of the Tribunal is to decide the appeal on merits irrespective of the appearance of the assessee or his counsel. In such circumstances, it was incumbent on the Tribunal to allow the miscellaneous petition.

7. However, in view of the statutory limitation provided under the proviso to Section 254(2) of the Act, the Tribunal was not competent to condone the delay beyond six (6) months. Hence, the only remedy available to the petitioner is to invoke the writ jurisdiction under Articles 226 and 227 of Constitution of India seeking for condonation of delay in filing the miscellaneous petition.

8. The reasons assigned by the petitioner for not appearing before the Tribunal on 22.11.2016 due to some miscommunication between the petitioner company and its Chartered Accountant is obviously sufficient explanation. On considering the same, the delay caused in filing the miscellaneous petition requires to be condoned and the matter has to be remanded back to the Tribunal for fresh consideration.

9. Learned counsel for the revenue would submit that even assuming the Tribunal had no power to condone the delay beyond six (6) months, the reasons assigned by the petitioner cannot be construed as sufficient reasons. The Tribunal considering the same, has categorically observed that the miscellaneous petition was filed in a negligent manner and without rectifying the apparent defects.

10. Heard the learned counsel appearing for the respective parties and perused the material on record.

11. Indisputably, the miscellaneous petition was filed with the delay of 497 days before the Tribunal and the Tribunal has no power to condone the delay beyond 6 months, if so, the petitioner approaching this Court under Articles 226 and 227 cannot be held to be unjustifiable. The Division Bench of this Court in identical circumstances in the case of M/S.PRACTICE STRATEGIC COMMUNICATIONS INDIA PRIVATE LIMITED vs. THE COMMISSIONER OF SERVICE TAX, BANGALORE, (2016) ILR(Kar) 4493 has held that remedy available to the assessee to seek for condonation of delay beyond the statutory period of limitation is only under Article 226 and 227 of Constitution of India. In the circumstances, the writ petition