Dismissal of an appeal by the ITAT for non-prosecution without adjudicating on merits is void; limitation amendments under Section 254(2) do not apply to applications for restoration under Rule 24 of the ITAT Rules.

JUDGMENT

Rajiv Sahai Endlaw, J. [VIA VIDEO CONFERENCING]--The petition impugns, (a) the order dated 23rd December, 2020 of the Income Tax Appellate Tribunal (ITAT), New Delhi, of dismissal of M.A. No. 118/DEL/18 filed by the writ petitioner in ITA No. 3844/DEL/2013 for Assessment Year 2008-09; as well as, (b) the order dated 10th December, 2015 of dismissal of ITA No. 3844/DEL/2013; and, seeks adjudication on merits of ITA No. 3844/DEL/2013.

2. We have heard the counsel for the petitioner and the counsel for the respondent appearing on advance notice.

3. Considering the nature of the controversy, the need to call for a counter affidavit is not felt.

4. The petitioner preferred ITA No. 3844/DEL/2013 aforesaid before the ITAT, for Assessment Year 2008-09. However the petitioner failed to appear, when the said appeal was listed on 9th December, 2015 and the ITAT, vide impugned order dated 10th December, 2015, recording that on earlier occasion also when the appeal was listed, adjournment was sought on behalf of the petitioner and that the petitioner did not appear to be interested in pursuing the appeal, and referring inter alia to Commissioner of Income Tax (Central) Vs. B. N. Bhattacharjee [1979] 118 ITR 461, holding that the appeal does not mean mere filing of memo of the appeal but effectively pursuing the same, dismissed the appeal for non- prosecution.

5. The petitioner, in or about March, 2017, filed an application for recall of the order dated 10th December, 2015 of dismissal for non- prosecution of ITA No. 3844/DEL/2013 aforesaid. The said application was dismissed by the ITAT vide order dated 7th February, 2018, recording/reasoning, (i) that the petitioner had filed its return declaring total income of Rs.17,72,070/-; (ii) that the Assessing Officer made addition to the extent of Rs.9,78,25,000/-; (iii) that the appeal preferred by the petitioner was dismissed by the Commissioner of Income Tax (Appeals); (iv) that the petitioner preferred appeal to the ITAT on 17th June, 2013 but which was dismissed in limine vide order dated 10th December, 2015; (v) it was the case of the petitioner in the subject application, that the petitioner, between 8th December, 2015 and 10th December, 2015 was ill and hence could not appear when the appeal was listed on 10th December, 2015; (vi) that the petitioner, in effect was seeking rectification of the order dated 10th December, 2015; (vii) that under Section 254 (2) of the INCOME TAX ACT , the petitioner has time period of four years to apply for restoration of the appeal, on providing sufficient reasons for non-appearance; (viii) however Section 254 (2) had been amended with effect from 1st June, 2016 and after amendment, any miscellaneous application had to be filed within six months from the date of the order; (ix) though as on the date of the order dated 10th December, 2015, the petitioner had time period of four years to file an application under Section 254 (2) of the INCOME TAX ACT , for restoration of the appeal, however vide amendment w.e.f. 1st June, 2016, the said period of four years was reduced to six months; and, (x) thus application for restoration of the appeal dismissed on 10th December, 2015 had to be filed within six months and the application was barred by time. Resultantly, the said application was dismissed.

6. The petitioner, instead of preferring remedies against the aforesaid order dated 7th February, 2018, on 26th February, 2018, filed another application be