HOTEL SAI SIDDHI PVT. LTD.,NASHIK V. ASSISTANT COMMISSIONER OF INCOME-TAX, NASHIK

MA 53/PUN/2022

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Hotel Sai Siddhi Pvt. Ltd. filed a Miscellaneous Application against an ex-parte order of the ITAT, which had dismissed their appeal due to non-attendance, attributed to non-receipt of notice. The assessee argued that the notice was not served due to a misconception by postal authorities, as there was no name board for 'Hotel Sai Siddhi Pvt. Ltd.' at the address used for the notice. The ITAT acknowledged the absence of discussion on the merits in the original order and noted the procedural error in not serving the notice, leading to the decision to recall the ex-parte order and re-hear the case.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 29519 (ITAT-PUNE)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-02-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Other Referred Cases: CIT Vs. Chenniappa Mudaliar 74 ITR 41, Pr CIT v. ITAT & Anr [W.P. No.2858/2019]
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND DESAI ADD
• Assessee Lawyers: SANKET JOSHI
• Keywords: Reasonable cause
• Section: 254(2)

Judgement Text

" आयकर अपीलीय अिधकरण ”ए” Ɋायपीठ पुणेमŐ। IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES “A” :: PUNE BEFORE MS.ASTHA CHANDRA, JUDICIAL MEMBER AND DR.DIPAK P. RIPOTE, ACCOUNTANT MEMBER Miscellaneous Application No.53/PUN/2022 (arising out of ITA No.941/PUN/2015) िनधाᭅरणवषᭅ / Assessment Year: 2011-12 Hotel Sai Siddhi Pvt. Ltd., Plot No.3/4, Poush Sector-A, Agra Road, Lekhangar, Nashik – 422009. PAN: AABCH4310G V s The Assistant Commissioner of Income Tax, Nashik. Appellant / Assessee Respondent / Revenue Assessee by Shri Sanket Joshi – AR Revenue by Shri Arvind Desai – Add.CIT(DR) Date of hearing 31/01/2025 Date of pronouncement 07/02/2025 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: This Miscellaneous Application filed by the Assessee against the Tribunal Order in ITA No.941/PUN/2015 for A.Y.2011-12; dated 17.08.2018. MA No.53/PUN/2022 [A] 2 1.1 The relevant paragraphs of the Miscellaneous application filed by Assessee are reproduced here as under : “2] The assessee submits that the above appeal filed by the assessee has been dismissed ex-parte by Hon'ble ITAT vide its order dated 17.08.2018 with no representation on the part of the assessee. In this respect, Hon'ble ITAT in para 3 of its order has noted that the notices for hearing issued by Regt. Post on the address of the assessee had returned undelivered with the remark \"left\" and therefore, no notice of hearing could be served upon the assessee. Hon'ble ITAT has noted that the assessee has not furnished any request intimating any change of address and therefore, Hon'ble ITAT has proceeded to dismiss the appeal ex- parte due to non attendance on the part of the assessee, without going into the merits of the additions. 3] The assessee submits that there was a reasonable cause on the part of the appellant assessee which resulted into non-attendance on the stipulated date of hearing i.e. 07.08.2018. In this regard, it is submitted that the notice of hearing fixing the above date was never served upon the assessee and this fact has also been noted by Hon'ble ITAT in its order dated 17.08.2018. In this respect, the assessee would also like to clarify that the address of the assessee company is the same as mentioned in Form no. 36 filed for A.Y 2011-12. However, it is submitted that the assessee a group is running a hotel, named 'Hotel Jupiter' at the said address. The assessee submits that there is no name board by the name of 'Hotel Sai Siddhi Pvt. Ltd.' on the above address. It is submitted that in MA No.53/PUN/2022 [A] 3 view of the above fact, the postal authorities may have developed a misconception that the assessee i.e. M/s. Hotel Sai Siddhi Pvt. Ltd. has left the premises. Accordingly, the assessee submits that the notice of hearing may not have been served upon the assessee by the postal authorities on the given address. Thus, it is submitted that there was a reasonable cause due to which there was no representation on the part of the appellant assessee on the stipulated date of hearing and hence, it is most humbly prayed before Hon'ble Bench that the appeal may please be restored u/r 24 of the Income Tax Appellate Tribunal Rules, 1963. 4] The assessee would like to further clarify that even the appellate order passed by Hon'ble ITAT on 17.08.2018 was never served upon the assessee. It is submitted that in the first week of December 2019, the assessee contacted its Chartered Accountant, CA Ajay Nagdev to know the status of the appeal filed before Hon'ble ITAT. At that time, the C.A. Mr. Nagdev requested Counsel, CA Sanket Milind Joshi to enquire about the status of the said appeal at the Office of ITAT, Pune. Upon online verification of 'case status', CA Mr. Joshi informed the C.A. of the assessee that the appeal has been disposed off in limine by Hon'ble 'A' Bench of ITAT vide order dated 17.08.2018 itself. On becoming aware of the said fact, the assessee immediately filed an application for obtaining certified copy of the ITAT order on 18.12.2019 since the original order was never served upon it. The certified copy of the ITAT order was received by the appellant on 19.12.2019. Thereafter, the present application u/r 24 of ITAT Rules, 1963 is being filed and hence, it is prayed that in the interest of justice, the appeal of the assessee may please be restored and the same may MA No.53/PUN/2022 [A] 4 please be decided on merits after granting an opportunity of being heard to the assessee. 6] At this juncture, the applicant most humbly submits that the present miscellaneous application filed u/s 254(2) is maintainable in law, in as much as, it is not time barred even though it is filed after a period of six months from the end of the month in which the present order dated 17.08.2018 was passed by Hon'ble ITAT. In this respect, the applicant would like to rely upon the ratio laid down by Hon'ble Bombay High Court in the case of Pr CIT v. ITAT & Anr [W.P. No.2858/2019] dated 24.01.2020. In that case, Hon'ble Jurisdictional High Court has categorically held that the amendment to section 254(2) made w.e.f. 01.06.2016 is not applicable to orders passed for asst. years prior to 2016 and in respect of the orders passed for A.Y.s prior to 01.06.2016, the limitation for filing Misc. Application u/s 254 would be four years from the date of order, as governed by the erstwhile provisions of section 254(2) of the Act. The relevant extract of the decision of Hon'ble Bombay High Court is reproduced as under- 10. Fact are not in dispute. However, a brief recital of the facts is considered necessary. The initial order passed by the Tribunal on 10 January, 2018 was an ex-parte one. The assessment year under consideration is 2006-07. The limitation of six months as noticed above substituted by the Finance Act, 2016 with effect from 1 June, 2016. Therefore, for the assessment year under consideration the limitation period may be construed to be four years from the date of the order. Even otherwise, if a view----” MA No.53/PUN/2022 [A] 5 9] It is submitted that in the present case, the order dated 17.08.2018 passed by Hon'ble ITAT was communicated to the applicant only on 19.12.2019. Thus, the time limit of six months from the end of the month in which the order passed was communicated to the assessee ends only on 30.06.2020. Hence, in view of the judicial decisions cited above, it is submitted that the present application is filed within the prescribed time limit laid down u/s 254(2) of the Act.” 2. The ld.Authorised Representative(ld.AR) for the Assessee submitted that ITAT has passed ex-parte order in ITA No.941/PUN/2015. The ld.AR submitted that the notice for hearing was never served on the Assessee by the ITAT. Therefore, he was not aware of hearing date and hence, Assessee could not attend for the hearing before the ITAT. 3. The ld.Departmental Representative (ld.DR) for the Revenue relied on the order of ITAT. Findings & Analysis : 4. We have heard both the parties and perused the records. The ITAT in ITA No.941/PUN/2015 has heard the case of the MA No.53/PUN/2022 [A] 6 Assessee on 07.08.2018 as ex-parte and then passed the order on 17.08.2018. It is mentioned in the order that no adjournment application has been filed. It is mentioned by ITAT in Paragraph-3 of the order that the notice sent by ITAT was returned by postal authority remarks as “unserved-left”. Thus, it is a fact that Assessee has not received the notice of hearing. Ld.AR during the proceedings filed Affidavit of the Managing Director of the Assessee stating that the Address mentioned in Form No.36 is correct. However, since there is no name “Hotel Sai Siddhi” inadvertently postman may have returned the notice. 4.1 It is also observed that there is no discussion on the merits of the ground raised by the Assessee, in the ITAT Order. The Hon'ble Supreme Court in the case of CIT Vs. Chenniappa Mudaliar 74 ITR 41 has held that ITAT has to decide the grounds of appeal on merits. MA No.53/PUN/2022 [A] 7 4.2 In these facts and circumstances of the case, in the interest of justice, we deem it appropriate to recall the ex-parte order of the ITAT in ITA No.941/PUN/2015, dated 17.08.2018. The registry is directed to fix up the case for hearing and inform both the parties. 5. Accordingly, Miscellaneous Application of the Assessee is allowed. Order pronounced in the open Court on 7th February, 2025. Sd/- Sd/- (ASTHA CHANDRA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 7th Feb, 2025/ SGR* आदेशकᳱᮧितिलिपअᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. िवभागीयᮧितिनिध, आयकर अपीलीय अिधकरण, “ए” बᱶच, पुणे / DR, ITAT, “A” Bench, Pune. 6. गाडᭅफ़ाइल / Guard File. MA No.53/PUN/2022 [A] 8 आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune. "