M/S. MINAKSHI BUILDERS,AHMEDNAGAR V. COMMISSIONER OF INCOME-TAX, APPEALS-2, PUNE

MA 46/PUN/2025

AI Insights

The case involves M/s. Minakshi Builders, who filed Miscellaneous Applications against an ex-parte order of the Income Tax Appellate Tribunal dated 22.11.2022 concerning assessment years 2007-08 to 2012-13. The Tribunal had initially dismissed the applications due to a perceived delay and lack of valid representation at the hearing. However, upon review, it was determined that the assessee's counsel was ill and unable to attend the hearing, and the adjournment request was not properly considered. The Tribunal, referencing decisions from other benches and the principles of natural justice, decided to recall the ex-parte order and set the appeals for a new hearing.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 792375 (ITAT-PUNE)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-12-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 12-05-2025
• Other Referred Cases: Masuma Iqbal Husain Rupani Vs. PCIT, PCIT vs. Income tax Appellate Tribunal, Om Prakash Sangwan vs. ITA
• Laws Referred To: Income Tax Act, 1961, Income Tax Appellate Tribunal Rules, 1963
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHILPA N C
• Assessee Lawyers: SUCHEK ANCHALIYA
• Keywords: Set aside; Reasonable cause; Period of limitation; Principle of natural justice
• Section: 147; 144

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES “A”, PUNE BEFORE DR.MANISH BORAD, ACCOUNTANT MEMBER AND MS. ASTHA CHANDRA, JUDICIAL MEMBER M.A. Nos.43 to 48/PUN/2025 (Arising out of ITA Nos.447 to 452/PUN/2020) \u0001नधा\u0005रण वष\u0005 / Assessment Years : 2007-08 to 2012-13 M/s. Minakshi Builders, 83, Maniknagar, Nagar Pune Road, Ahmednagar – 414001 Maharashtra PAN : AANFM7812P Vs. CIT(A)-2, Pune Applicant Respondent आदेश / ORDER PER DR. MANISH BORAD, ACCOUNTANT MEMBER : The applicant has moved these Miscellaneous applications against the Tribunal order dated 22.11.2022 passed in ITA Nos.447 to 452/PUN/2020 for the A.Yrs. 2007-08 to 2012-13. 2. Registry has informed that the present Miscellaneous applications are barred by limitation by 712 days. This fact was also pointed out by ld. Departmental Representative. On the other hand, ld. Counsel for the assessee submitted that assessee has previously filed Miscellaneous Applications within the stipulated time limit and all of them have been dismissed for the reasons mentioned therein. However, assessee filed M.A. No.192/PUN/2023 for all the impugned assessment years Assessee by : Shri Suchek Anchaliya Revenue by : Smt. Shilpa NC Date of hearing : 21.11.2025 Date of pronouncement : 02.12.2025 Printed from counselvise.com M.A. Nos.43 to 48/PUN/2025 M/s. Minakshi Builders 2 and this Tribunal vide order dated 19.02.2025 dismissed the Miscellaneous Application giving liberty to the assessee to file separate Miscellaneous Applications for each of the assessment years. Therefore, there is no delay in filing present Miscellaneous Applications. 3. We have heard the rival contentions and perused the record placed before us. The common grievance of the assessee in the instant M.As is that on the date of hearing fixed on 23.08.2024 assessee sought through his legal representative Mr. Tushar Nagori who appeared virtually sought adjournment petition on the ground that Senior Counsel who has to argue the matter is ill. However, this Tribunal rejected the adjournment and has passed the order dated 23.08.2024 dismissing the M.A.Nos.159 to 164/PUN/2023. 4. Before us, ld. Counsel for the assessee has referred to the Medical Certificate issued by Saideep Hospital Healthcare and Research Pvt. Ltd., Ahmednagar dated 13.11.2022 stating that Mr. Prasad Subhash Bhandari (who is the Senior Counsel appointed by the assessee for arguing the appeals filed before this Tribunal) was suffering from Viral Fever and diagnosed Dengue Positive during the period 13.11.2022 to 28.11.2022. Therefore, there was a valid reason for seeking adjournment. We further find that this Tribunal after rejecting the adjournment application has proceeded exparte qua the assessee and dismissed the assessee’s appeals vide impugned order dated 22.11.2022. 5. At the time of hearing of the instant Miscellaneous Applications, ld. Counsel for the assessee has reiterated the Printed from counselvise.com M.A. Nos.43 to 48/PUN/2025 M/s. Minakshi Builders 3 facts and demonstrated the events which have happened while passing the impugned orders. We proceed to discuss the facts infra. 6. After the dismissal of appeals vide order dated 22.11.2022, assessee filed M.A. Nos. 1 to 6/PUN/2023 requesting recall of the Tribunal order. The Tribunal vide order dated 24.05.2023 dismissed the Miscellaneous Applications on the ground that adjournment petition was moved in the name of Saideep Healthcare and Research Pvt. Ltd. and a common Power of Attorney was filed for all the appeals. Thereafter, assessee filed M.A.Nos. 159 to 164/PUN/2023 requesting to recall the Exparte Tribunal Order dated 22.11.2022. The Tribunal vide order dated 23.08.2024 again dismissed the Miscellaneous Applications on the ground that the matter has been earlier adjourned four times at the request of applicant and the applicant could not show any reasonable cause for non-appearance. The Tribunal has already dealt with same cause of action in earlier M.A.Nos. 1 to 06/PUN/2023. Thereafter, assessee again filed M.A. No. M.A.No.192/PUN/2023 seeking recall of the Tribunal order dated 22.11.2022. The Tribunal vide order dated 19.02.2025 dismissed the M.A.filed by the assessee as infructuous on the ground that assessee has filed only single Miscellaneous Application as against the appeals for various assessment years. However, assessee was given liberty to move separate Miscellaneous Application for each of the assessment year. 7. After carefully perusing the chronology of events which took place in the instant case, we find that assessee has filed Miscellaneous Applications within the stipulated time limit and Printed from counselvise.com M.A. Nos.43 to 48/PUN/2025 M/s. Minakshi Builders 4 therefore we hold that there is no delay of 712 days in filing of the Miscellaneous Applications and the same are therefore admitted for adjudication. 8. We further find that assessee has filed M.A. No. 192/PUN/2023 within the prescribed time limit of the passing of the impugned consolidated order and however since separate M.As are not filed, this Tribunal vide order dated 19.02.2025 dismissed the M.A. filed by the assessee giving opportunity to file separate M.As. Relevant observation of the Tribunal reads as under : \"3. After hearing the ld. Departmental Representative, we find that the applicant filed the instant Miscellaneous Application seeking recall of the exparte order in ITA Nos. 447 to 452/PUN/2020 for the A.Yrs. 2007-08 to 2012-13. Normally as many appeals are to be filed as the number of appeals have been disposed of by the order appealed against whereas the applicant herein has filed a single Miscellaneous Application seeking recall of the consolidated order passed for various assessment years. Therefore, the M.A. filed by the assessee is dismissed as 'infructuous'. However, the applicant is directed to move Miscellaneous Applications for each of the assessment year separately. 4. In the result, the M.A. filed by the applicant is dismissed.” 9. Now by way of these instant M.A.Nos. 43 to 48/PUN/2025 the assessee is seeking recall of the Tribunal order dated 22.11.2022 in terms of Rule 24 of Income Tax Appellate Tribunal Rules, 1963 following the principles of natural justice and since the assessee has been heard exparte, the impugned order dated 22.11.2022. Contents of said M.A. are reproduced below: “MISCELLANEOUS APPLICATION U/S. 254(2) OF THE INCOME TAX ACT, 1961, READ WITH RULE 24 OF THE INCOME TAX APPELLATE RULES 1963. Printed from counselvise.com M.A. Nos.43 to 48/PUN/2025 M/s. Minakshi Builders 5 The captioned appeal was filed by M/s Minakshi Builders ('the applicant/ assessee\"), against the order of Ld. Commissioner of Income Tax (Appeal) - 2, Pune ('hereinafter referred as 'CIT(A)'), dated 20.01.2020. The captioned appeal was heard on 14.11.2022 and the Hon'ble 'A' Bench of ITAT, Pune had decided the above-mentioned appeal by the order pronounced on 22.11.2022, ex parte. May it please Your Honors: 1. The captioned appeal was filed by the applicant against the order of the Ld. CIT(A) dated 20.01.2020 upholding the order of the Ld. Assessing Officer ('Ld. A.O.') u/s 144 r.w.s. 147 of the Act, dated 31.03.2015, wherein the single addition of Rs. 15,00,000/- by alleging it to be accommodation entry obtained from M/s Kothari & Co., being an alleged Bhanwarlal Jain entity & made an addition to the total income of the applicant for the year under consideration. 2. Initially, the hearing for ITA No. 447/ Pun/ 2020 was fixed on 14.11.2022, the Authorized Representative (Adv. Prasad Bhandari) was unfortunately affected by Viral Fever (Dengue NS I Positive and viral Hepatitis). The copy of the medical report is enclosed as 'Annexure A'). Accordingly, the authorized representative, moved an application for an adjournment through mail dated 14.11.2022 at 9.28 AM requesting to adjourn the hearing on the given date. 3. However, in the para 10 of the order dated 14.11.2022, the Hon'ble Bench observed and stated that the adjournment sought by the person doesn't have the authority to represent the case and dismissed the appeal by passing the order ex parte. The operative para of the order is as under: \"10. We have gone through the record and find there is no power of attorney executed in favour of the said person by the appellant and there are no details such as who is to represent this matter and who was suffering from viral fever etc and also taking into consideration, this matter was adjourned at the request of the assessee on several occasions, earlier, the issue in the appeal is no more res integra, we proceed to dispose of this appeal on merits.\" 4. Thereafter, the applicant had filed a Miscellaneous Application ('MA') on 04.01.2023. The assessee in its application requested to recall the order on the following grounds: a) The Authorized representative i.e Shri Prasad S Bhandari has furnished the letter of authority on 07.09.2022. Thus, there was a valid power of attorney in favour of CA. Prasad S Bhandari who requested for adjournment of the hearing fixed on 14.11.2022 vide mail dated 14.11.2022 at 9.28 AM. Therefore, requested to grant an opportunity to heard the matter on merit and other legal grounds. Printed from counselvise.com M.A. Nos.43 to 48/PUN/2025 M/s. Minakshi Builders 6 b) The applicant had moved the additional ground of appeal which was not adjudicated by the Hon'ble Bench neither was it rejected by the Hon'ble Bench. 5. Accordingly, it was submitted that a mistake apparent from record had crept in the impugned order. The MA was called for hearing and the Hon'ble tribunal decided the case and passed an ex- parte under MA. No. 01 to 06/Pun/2023. The Hon'ble Tribunal in its order dated 24.05.2023 did not consider any of the aforesaid grounds and rejected the Miscellaneous Application of the appellant solely for the reason that a common power of attorney was filed in the said case. The relevant finding of the Hon'ble Tribunal is as under: \"2. We find that the averments made by the petitioner in the present Miscellaneous Petitions are contrary to the fact that there was no adjournment petition moved by the CA, Prasad S. Bhandari, as the adjournment petition was moved in the name of Saideep Healthcare & Research Pvt. Ltd. This fact was clearly recorded by the Tribunal vide para 9 of the impugned order. The Tribunal also gave a categorical finding that there was no valid power of attorney filed by the said person. We also find the power of attorney executed in favour of the CA, Prasad S. Bhandari is not valid in law, as common power of attorney was filed for all the appeals. Therefore, we are of the considered opinion that no valid reason was given for non-appearance before the Tribunal. Thus, the assessee could not satisfy us as to how it was prevented by sufficient and reasonable cause from causing the appearance before the Tribunal, on the day the matter was posted for hearing. Similarly, in the Miscellaneous Petition also, a common power of attorney in the name of CA, Prasad S. Bhandari was filed for all the Miscellaneous Petitions together, which is not a valid power of attorney. Since the assessee could not satisfy the conditions prescribed under the Rule 24 of the Income Tax (Appellate Tribunal), Rules, 1963, we are of the considered opinion that it is not a fit case for recall of the matter. Accordingly, the prayer for recall the impugned order of the Tribunal (supra) is rejected.\" 10. On going through the above contents and further on perusal of Rule 24 of the Income Tax Appellate Tribunal Rules, 1963 which provides that on the date of hearing or any other date, if the appellant does not appear in person or through an Authorised Representative, the Tribunal may dispose of the appeal on merits after hearing the respondent. We further notice that Rule 24 provides where an appeal has been Printed from counselvise.com M.A. Nos.43 to 48/PUN/2025 M/s. Minakshi Builders 7 disposed of as provided and the appellant appears afterwards and satisfies the Tribunal that there was ‘sufficient cause’ of his non-appearance when the appeal was called for hearing, the Tribunal shall set aside the exparte order, restoring the appeal. Now in the instant case, the assessee has successfully demonstrated that on the date of hearing of the appeals, adjournment was sought on the medical ground stating that arguing counsel was suffering from Viral Fever and could not appear on the given date. Further, evidence in support of the medical treatment undergone by the counsel Mr. Prasad S. Bhandari and the certificate issued by the concerned doctor has also been placed on record. All these documents prima facie indicate that there was ‘sufficient cause’ for seeking adjournment. However, this Tribunal has disposed of the appeals exparte. Further proviso to Rule 24 provides that in such case where the exparte order has been framed and the assessee is able to satisfy the Tribunal about the ‘sufficient cause’ for non-appearance. We find that the assessee case is duly covered by proviso to Rule 24 and the impugned order dated 22.11.2022 deserves to be recalled. The plea of the assessee in all the Miscellaneous Applications is that the consolidated order of the Tribunal dated 22.11.2022 is passed exparte and there had been no occasion for the assessee to putforth its contentions/submissions in support of grounds of appeal. In support, ld. Counsel for the assessee relied on the decision of Coordinate Bench, Mumbai in the case of Masuma Iqbal Husain Rupani Vs. PCIT – M.A. Nos. 152 to 155/Mum/2022 order dated 14.12.2022 to contend that there is no time limit prescribed in Rule 24 of ITAT Rules, 1963 to recall the order. Finding of Tribunal reads as under : Printed from counselvise.com M.A. Nos.43 to 48/PUN/2025 M/s. Minakshi Builders 8 “5. We heard Ld D.R and perused the record. The moot question is whether these miscellaneous applications filed after almost 15 years could be recalled by the Tribunal. The provisions of sec.254(2) earlier prescribed a limit of four years from the date of the order for recalling the order passed by the Tribunal. The said time limit was reduced to six months from the end of the month in which the order was passed by an amendment made by Finance Act, 2016 w.e.f 1-06-2016. However, it is the contention of Ld A.R that the impugned order of the Tribunal is sought to be recalled under Rule 24 of Appellate Tribunal Rules, 1963 and the said rule does not prescribed any time limit. 6. We have perused the decisions relied upon by Ld A.R. In the case of PCIT vs. Income tax Appellate Tribunal (supra), the Hon'ble jurisdictional Bombay High Court has observed as under:- \"14. Rule 24 of the Income tax (Appellate Tribunal) Rules, 1963 (Rules) is relevant. Rule 24 reads as under:- 24. Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorised representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent: Provided that where an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance, when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex parte order and restoring the appeal. 15. From a reading of Rule 24 as extracted above, it is seen that Tribunal is vested with the power to recall an ex-parte order. Requirement of the proviso is that Tribunal must be satisfied that there was sufficient cause for non-appearance of the appellant. No time limit is prescribed in Rule 24. 7. The Hon'ble High Court of Delhi in the case of Om Prakash Sangwan in ITA 625/2018 & CM APPL 21436/2018, ITA 626/2018 & CM APPL 21437/2018 has also expressed an identical view that there is no time limit for recalling the order under rule 24 of Appellate Tribunal Rules. The relevant portion of the decision rendered by Hon'ble Delhi High Court is reproduced herein below:- \"Learned counsel for the appellant sought to impress upon the Court that the period mentioned in Section 254(2) of the Act only applied when the Tribunal notices the error and decides to proceed ahead to rectify it and per se does not indicate any limitation within which the aggrieved party (assessee or Revenue) can approach it. He relied upon the judgments of the Allahabad High Court titled Vijay Kumar Ruia v. Commissioner Printed from counselvise.com M.A. Nos.43 to 48/PUN/2025 M/s. Minakshi Builders 9 of Income Tax [2011] 15 taxmann.com (Allahabad) and Gujarat High Court titled Liladhar T Khushlani Vs. Commissioner of Customs Tax Appeal No.915 of 2016 delivered on 25.01.2017 for this purpose. This Court is of the opinion that those judgments cannot afford the appellant any comfort. Section 254(2) of the Act was advisably amended to curtail extended period of four years which had been provided to either class of litigants to approach the IT AT for a rectification. In this case, the Court has considered the submissions of the parties. In this case, the ITAT did not decide the appeal on the merits as it is mandated to but rather rejected for non-prosecution. Rule 24 of the Income Tax Appellate Tribunal's Rules and the other provisions of both the Income Tax Act and Rules indicate that the ITAT has to decide the appeals or matters before it on the merits. In these circumstances, the ITAT's failure to do so, implies that it exceeded its jurisdiction and instead of deciding on the merits, rejected the appeal merely for non-prosecution. In the given circumstances and keeping in view the fact that Rule 25 does not stipulate any period of limitation within which the aggrieved party can approach the Tribunal, it is open to the appellant to approach the Tribunal with a suitable application for restoration of the appeals; in such event, the appeals could be considered on their merits and decided in accordance with law after hearing both the parties, provided, the application is presented before the ITAT within thirty days from today.\" 8. We notice that various benches of Tribunal has recalled the ex- parte orders under Rule 24 of Appellate Tribunal Rules following the decision rendered by the Hon'ble Delhi High Court, referred supra:- (a) the Kolkatta bench of Tribunal in the case of Arati Engineering & Construction Co. (MA No.82/Kol/2018 dated 29- 8-2018) (b) the Bangalore bench of Tribunal in the case of M/s Mini Life Sciences P Ltd vs. ITO (M P No.121/Bang/2020 dated 18.12.2020) (c) the Ahmedabad bench of Tribunal in the case of Smt Manjulaben C Tomar vs. ITO (ΜΑ No.238/Ahd/2019 dated 21- 04-2022) 9. In the instant case, it is the submission of the assessee that she has not received the notice of hearing scheduled on 31.10.2006. Considering the facts of the case and the status of the assessee, we are of the view that there was sufficient cause for the assessee in not appearing before the Tribunal on the date of hearing. The impugned order has been passed by the Tribunal ex-parte and the said order is sought to be recalled under rule 24 of Appellate Tribunal Rules. In the above referred decisions rendered by Hon'ble Bombay High Court, Hon'ble Delhi High Court and the co-ordinate benches, it has been held that Rule 24 does not prescribe any time limit. Accordingly, in Printed from counselvise.com M.A. Nos.43 to 48/PUN/2025 M/s. Minakshi Builders 10 exercise of power granted to the Tribunal under rule 24 of Appellate Tribunal Rules, 1963, we recall the impugned common order dated 2nd November, 2006 passed in ITA Nos.648 to 651/Mum/04. The registry is directed to post the appeals in the normal course. 10. In the result, all the miscellaneous applications filed by the assessee are allowed.” 11. Respectfully following the above decision and the peculiar facts of the instant case indicating an apparent mistake in the impugned order and the principles of natural justice, we recall the impugned order dated 22.11.2022. Registry is directed to place these appeals at its original number and fix them for hearing in due course and inform both the parties. 12. In the result, all the Miscellaneous Application Nos.43 to 48/PUN/2025 filed by the assessee are allowed as per terms indicated hereinabove. Order pronounced on this 02nd day of December, 2025. Sd/- Sd/-/- (ASTHA CHANDRA) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; \u0001दनांक / Dated : 02nd December, 2025 Satish आदेश क\u0002 \u0003ितिलिप अ ेिषत / Copy of the Order forwarded to : 1. अपीलाथ / The Appellant. 2. \u000eयथ / The Respondent. 3. The Pr. CIT concerned. 4. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, “A” ब\u0014च, पुणे / DR, ITAT, “A” Bench, Pune. 5. गाड\u0004 फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Assistant Registrar आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune. Printed from counselvise.com "