M/S.RADHAGOBINDO ROY AND CO. V. ASSISTANT COMMISSIONER OF INCOME TAX,CUTTACK

ITA/71/2017

AI Insights

The appellant challenged the order of the Income Tax Appellate Tribunal, Cuttack, which confirmed the order passed by the CIT (A), Cuttack. The original dispute involved a decision in the case of Smt. Parbati Das vs. I.T.O., which was later recalled due to the absence of the assessee's representative at the hearing, attributed to illness. The Tribunal recalled its earlier order and restored the appeal to its original number, directing the Registry to list the appeal in due course. The High Court, upon reviewing the matter, decided not to entertain the appeal and suggested that the appellant could file a Miscellaneous Application to have both matters heard together.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 765022 (HC-CUTTACK)
• Appeal Type: Others
• Pronouncement Date: 10-12-2019
• Assessment Year: misc
• Other Referred Cases: Smt. Parbati Das \\u2013v- I.T.O., Ward-2, Kendrapada, Joseph Michael & Bros. Vs. ITO (1933) 199 ITR 466
• Result in Favour of: Others
• Court: HIGH COURT
• Keywords: Appeal; Income Tax; Miscellaneous Application; Recall order

Judgement Text

" 11. 10.12.2019 Heard learned counsel for the appellant and Mr. Radhashyam Chimanka, learned counsel for the Income Tax Department. By way of this appeal, the appellant has challenged the order dated 10.07.2017 (Annexure-1) passed by the Income Tax Appellate Tribunal, Cuttack in I.T.A. No. 232/CTK/2016 confirming the order dated 31.05.2016 passed by the CIT (A), Cuttack The order which is sought to be challenged herein has been passed relying upon the decision in the case of Smt. Parbati Das –v- I.T.O., Ward-2, Kendrapada in ITA No. 287/CTK/2015. However, in the meantime, the said order has been recalled vide order dated 24.09.2019 in Miscellaneous Application No.14/ CTK/2017, which reads as under: “This miscellaneous application has been filed by the assessee seeking recalling of the order of Tribunal dated 07.03.2017 passed in ITA No. 287/CTK/2015 for A.Y. 2010-2011. 2. We have heard arguments of both the sides and carefully perused the order of the Tribunal. 3. The ld. AR submitted that on the date of hearing ld. AR of the assessee could not appear before the Tribunal due to suffering from high fever and on behalf of him, adjournment application was placed before the bench by Shri R.P. Mohapatra, Advocate, however, the Tribunal on the said date rejected the adjournment application and heard and dismissed the appeal of the ITA NO. 71 OF 2017 2 assessee ex-parte qua the assessee considering the submissions of ld. DR. Therefore, ld. AR prayed that the order dated 07.03.2017 may kindly be recalled and appeal of the assessee may kindly be heard on merits. To support his contention, ld. AR relied on the decision of Hon’ble Kerala High Court in the case of Joseph Michael & Bros. Vs. ITO (1933) 199 ITR 466. 4. On the other hand, ld. DR relied on the orders of the Tribunal. 5. After hearing the submissions of both the parties and carefully perusing of the Tribunal order, we observe that the case was fixed for hearing on different dates and assessee had appeared on some occasions, however, on the date of final hearing, the AR of the assessee could not appear as he was suffering from high fever, resulting into dismissal of the appeal of the assessee by the Tribunal on the said date i.e. on 07.03.2017. Ld. AR before us produced medical certificate on account of illness due to which he could not appear on the date of above said hearing. We have also gone through medical documents filed by the ld. AR before us and found that the non-appearance on the above said date is duly explained by the ld. AR as he was suffering from high fever. Therefore, in the interest of justice and considering the submissions of the ld. AR of the assessee, we recall the order dated 07.03.2017 and restore the appeal of the assessee to its original number. The Registry is directed to list the appeal of the assessee in due course. Parties may be informed accordingly. 6. In the result, miscellaneous application of assessee is allowed. Order pronounced in the open court on 24/09/2019.” 3 In that view of the matter, we find no reason to entertain this appeal. However, it will be open for the appellant to approach the learned Tribunal by way of Misc. Application and request it to hear both the matters together. It is made clear that we have not expressed any opinion on the merits of the case. Accordingly, the ITA stands disposed of. Urgent certified copy of this order be granted on proper application. …………………….. K.S. JHAVERI (CHIEF JUSTICE) ……………………… K.R. MOHAPATRA, (JUDGE) bks/jm "