Shri Mahipal Wig, New Delhi V. ACIT, New Delhi

ITA 815/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3629 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 29-06-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 10-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `E: NEW DELHI BEFORE SHRI C.L.SETHI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T. A. NO.815/DEL/2011 ASSESSMENT YEAR : 2005-06 SHRI MAHIPAL WIG, ASSTT. COMMISSIONER OF INCOME- TAX, B-191, NARAINA INDUSTRIAL VS. CIRCLE 27(1), NEW DE LHI. AREA, PHASE-I, NEW DELHI. PAN: AAAPW6503G (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SATYEN SETHI, ADVOCATE. RESPONDENT BY: MS. Y. KAKKAR, SR. DR. O R D E R PER C.L. SETHI, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL AGAINST THE EX PARTE ORDE R DATED 12.11.2010 PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX (A PPEALS) PERTAINING TO THE ASSESSMENT YEAR 2005-06. 2. GROUND NO.1 RAISED BY THE ASSESSEE IS AS UNDER:- 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) XXIV, NEW DE LHI (HEREINAFTER CALLED THE CIT(A)) HAS ERRED IN DISPO SING THE APPEAL EXPARTE. 1.1 THAT ON FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, IT WAS NOT APPRECIATED THAT THE CHARTERED ACCOUNTANT E NGAGED 2 REPRESENT THE APPEAL DEFAULTED AND FAILED TO APPEAR WITHOUT NOTICE TO THE APPELLANT. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. 4. IN THE COURSE OF HEARING OF THIS APPEAL, IT HAS BEEN SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE CHARTERED ACCOUNTANT ENGAGED TO REPRESENT THE APPEAL BEFORE THE LEARNED CIT(A), COM MITTED A DEFAULT AND FAILED TO APPEAR BEFORE THE LEARNED CIT(A) WITHOUT ANY NOTICE TO THE ASSESSEE, AND, THUS, THE ASSESSEE WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE FROM APPEARING BEFORE THE LEARNED CIT(A) TO P LACE HIS CASE SUPPORTED BY EVIDENCES. IN SUPPORT OF THIS CONTENTION, DECLA RATION OF THE ASSESSEE DATED 9 TH FEBRUARY, 2011 HAS BEEN FILED. THE ASSESSEE HAS S UBMITTED THAT THE ASSESSEE ENGAGED M/S. S.P. JAIN & CO., CHARTERED AC COUNTANTS, AND ALL THE PAPERS WERE DULY HANDED OVER TO THE FIRM OF CHARTER ED ACCOUNTANTS, TO APPEAR BEFORE THE LEARNED CIT(A) AND TO ARGUE THE M ATTER. THE NOTICES RECEIVED BY THE ASSESSEE WERE DULY INFORMED TO THE CHARTERED ACCOUNTANTS FIRM. HOWEVER, THE ASSESSEE WAS SURPRISED TO RECEI VE ORDER DATED 12.11.2010 PASSED BY THE LEARNED CIT(A) DECIDING THE ASSESSEE S APPEAL EX PARTE AND THE ASSESSEE THEN CAME TO KNOW THAT HIS APPEAL REMAINED UNATTENDED AND THATS WHY THE SAME HAS BEEN DISPOSED EX PARTE. 5. THE LEARNED DR ON THE OTHER HAND, SUBMITTED THAT THE ASSESSEE HAS NOT FILED ANY EVIDENCE TO SHOW AND ESTABLISH THAT THE A SSESSEES CHARTERED 3 ACCOUNTANT HAD COMMITTED DEFAULT AND FAILED TO APPE AR BEFORE THE LEARNED CIT(A) WITHOUT NOTICE TO THE ASSESSEE. SHE, THEREF ORE, SUBMITTED THAT THE CIT(A) WAS JUSTIFIED IN DECIDING THE APPEAL EX PART E. 6. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE P ARTIES AND KEEPING IN VIEW THAT LET THE MATTER BE DECIDED ON MERITS AFTE R HEARING THE ASSESSEE AND CONSIDERING HIS SUBMISSIONS AND CONTENTIONS ALONG W ITH EVIDENCES AND MATERIALS THAT MAY BE PRODUCED BY THE ASSESSEE BEFO RE THE LEARNED CIT(A), WE ARE INCLINED TO RESTORE THE MATTER BACK TO THE F ILE OF THE LEARNED CIT(A) FOR HIS FRESH DISPOSAL ON MERITS AFTER CONSIDERING THE ASSESSEES SUBMISSIONS AND CONTENTIONS ALONG WITH EVIDENCES AND MATERIALS THAT THE ASSESSEE MAY WISH TO PRODUCE BEFORE THE LEARNED CIT(A). IN THIS REGARD, THE LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAS GIVEN AN UNDERTAKING TO APPEAR BEFORE THE LEARNED CIT(A) ON ANY SPECIFIED D ATE AND HAS FURTHER UNDERTAKEN NOT TO TAKE ANY ADJOURNMENT AND HAS ALSO UNDERTAKEN TO FILE ALL THE NECESSARY DOCUMENTS ON THE VERY FIRST DAY OF HE ARING AND MAKE COMPLIANCE ON SUBSEQUENT DATES TO BE FIXED BY THE L EARNED CIT(A) FOR THE PURPOSE OF HEARING OF HIS APPEAL. 7. IN THE LIGHT OF THE DISCUSSIONS MADE ABOVE, WE T HEREFORE, SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND REMIT THE MATTER BA CK TO HIM FOR HIS FRESH DISPOSAL AFTER CONSIDERING THE ASSESSEES SUBMISSIO NS AND CONTENTIONS 4 INCLUDING DOCUMENTS OR EVIDENCES THAT MAY BE FILED BY THE ASSESSEE BEFORE HIM. WE FURTHER DIRECT THE ASSESSEE TO APPEAR BEFO RE THE LEARNED CIT(A) WITHIN ONE MONTH FROM THE END OF THE MONTH IN WHICH THIS ORDER IS RECEIVED AND TO FILE ALL THE NECESSARY DOCUMENTS BEFORE HIM AND TO TAKE NECESSARY INSTRUCTIONS FROM THE LEARNED CIT(A) AS TO THE DATE OF HEARING TO BE FIXED BY THE LEARNED CIT(A) AS PER HIS CONVENIENCE. THE ASS ESSEE SHALL ALSO PRODUCE ALL NECESSARY DETAILS AND PARTICULARS AS MAY BE REQ UIRED BY THE LEARNED CIT(A) FOR DECIDING THE ISSUES ON MERITS. WE ORDER ACCORDINGLY. 8. SINCE THE MATTER HAS BEEN RESTORED BACK TO THE L EARNED CIT(A) FOR FRESH DISPOSAL IN THE MANNER AS INDICATED ABOVE, TH E OTHER GROUNDS OF APPEAL ON MERIT HAVE BECOME REDUNDANT AT THIS STAGE, WHICH SHALL BE CONSIDERED BY THE LEARNED CIT(A) WHILE DECIDING THE APPEAL AFRESH . 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED TO BE ALLOWED FOR A STATISTICAL PURPOSE. 10. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT IMMEDIATELY AFTER THE HEARING WAS OVER ON 29 TH JUNE, 2011. SD/- SD/- (SHAMIM YAHYA) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH JUNE, 2011. 5 ITA NO.815/DEL/2011 COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.