SHRI YUNUSH FAROOQUI, CHITRAKOOT V. INCOME TAX OFFICER, WARD-5(5), BANDA

MA 03/ALLD/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1660 (ITAT-ALLAHABAD)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 29-01-2018
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD BENCH ,ALLAHABAD (THROUGH VIRTUAL COURT), BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MISCELLANEOUS APPLICATION (M.A. )NO. 03/ALLD./2018 ARISING OUT OF ITA NO.152/ALLD/2017 ASSESSMENT YEAR: 2011-12 YUNUSH FAROOQUI, RATNAWALI MARG, SITAPUR KARVY, CHITRAKOOT-210205 PAN-ABSPF4842L V. INCOME TAX OFFICER, RANGE-5(5), BANDA, UP (APPELLANT) (RESPONDENT) APPELLANT BY: MR. PRAVEEN GODBOLE, CA RESPONDENT BY: MR. A.K. SINGH, SR. DR DATE OF HEARING: 11.12.2020 DATE OF PRONOUNCEMENT: 11 .12.2020 O R D E R PER SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER: THIS MISCELLANEOUS APPLICATION (MA) BEARING NUMBER 3/ALLD./2018 ARISING OUT OF ITA NO. 152/ALLD/2017 FOR ASSESSMENT YEAR (AY) : 2011-12 WAS FILED BY ASSESSEE WITH INCOME TAX APPELLATE TRIBUNAL, ALLAHABAD( HEREIN AFTER CALLED THE TRIBUNAL ) ON 29 TH JANUARY, 2018, SEEKING RECALL OF AN EX PARTE APPELLATE ORDER IN ITA NO. 152/ALLD/2017 , DATED 14.12.2017 PASSED BY TRIBUNAL, FOR AY: 2011-12. THIS MISC. APPLICATION HAS BEEN FILED WITHIN THE TIME AS IS STIPULATED UNDER SECTION 254(2) OF THE ACT. THE MAIN GRIEVANCE OF THE ASSESSEE IN THIS MA IS THAT THE AFORESAID APPELLATE ORDER, DATED 14.12.2017 WAS PASSED BY TRIBUNAL IN THE ABSENCE OF THE ASSESSEE, ON THE MA NO. 3/ALLD/2018 ARISING OUT OF ITA NO. 152/ALLD/2017 YUNUSH FAROOQUI ASSESSMENT YEAR: 2011-12 2 VERY FIRST DAY FIXED FOR HEARING OF AN APPEAL BEFORE THE TRIBUNAL, WITHOUT GIVING ANY PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WHEREIN TRIBUNAL DISMISSED THE APPEAL OF THE ASSESSEE EX-PARTE IN LIMINE BY APPLYING THE RATIO OF DECISION OF TRIBUNAL ORDER IN THE CASE OF CIT V. MULTI PLAN INDIA (P) LTD., 38 ITD 320 (DEL.) AND HONBLE MADHYA PRADESH HIGH COURT DECISION IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR V. CWT, 223 ITR 480 (MP). THE LEARNED COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE APPELLATE ORDER IN ITA NO. 152/ALLD./2017 , DATED 14.12.2017 PASSED BY TRIBUNAL DISMISSING APPEAL OF THE ASSESSEE EX-PARTE IN LIMINE WITHOUT DISCUSSING THE ISSUES ON MERITS, WHICH IS REPRODUCED AS UNDER:- 2. NONE IS PRESENT ON BEHALF OF THE ASSESSEE DESPITE THE NOTICE FOR HEARING WAS SENT THROUGH REGISTERED POST AT THE ADDRESS GIVEN IN THE APPEAL PAPERS, WHICH IS RETURNED BY THE POSTAL AUTHORITIES WITH THE REMARK RECIPIENT IS NOT FOUND. NO OTHER ADDRESS IS AVAILABLE ON RECORD NOR ANY WRITTEN REQUEST FOR ADJOURNMENT ON BEHALF OF THE ASSESSEE IS AVAILABLE ON RECORD. IT APPEARS THAT THE ASSESSEE IS NOT INTERESTED IN PROSECUTING THE APPEAL. THEREFORE, THE APPEAL OF THE ASSESSEE DESERVES TO BE DISMISSED IN LIMINE FOR WANT OF PROSECUTION IN VIEW OF THE ORDERS OF TRIBUNAL IN CIT VS. MULTI PLAN INDIA (P) LTD., 38 ITD 320 (DEL.) AND M.P. HIGH COURT IN ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT, 223 ITR 480 (MP). 3. IN THE RESULT , THE APPEAL IS DISMISSED, AS INDICATED ABOVE. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT IN SUPPORT OF THE CONTENTION THAT EX PARTE ORDER WAS PASSED BY THE TRIBUNAL WITHOUT HEARING ASSESSEE, ON 14 TH DECEMBER, 2017 IN ITA NO. 152/ALLD/2017 FOR AY: 2011-12 , WITHOUT GIVING PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND ALSO THAT THE ASSESSEE WAS NOT HAVING THE KNOWLEDGE OF THE DATE OF HEARING BEFORE THE TRIBUNAL. ON THE OTHER HAND, THE LEARNED DR FAIRLY SUBMITTED THAT HE HAS NO OBJECTION IF THE ORDER OF THE TRIBUNAL IN ITA NO. 152/ALLD/2017 , DATED 14.12.2017 FOR AY: 2011-12 , IS RECALLED AND IS DIRECTED TO BE HEARD BY THE DIVISION BENCH ON MERITS, IN ACCORDANCE WITH LAW. MA NO. 3/ALLD/2018 ARISING OUT OF ITA NO. 152/ALLD/2017 YUNUSH FAROOQUI ASSESSMENT YEAR: 2011-12 3 2. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE HAVE OBSERVED THAT TRIBUNAL HAS PASSED AN EX PARTE APPELLATE ORDER IN THE ABSENCE OF ASSESSEE , DATED 14 TH DECEMBER, 2017 IN ITA NO. 152/ALLD/2017 FOR AY: 2011-12 , WHEREIN THE APPEAL OF THE ASSESSEE WAS DISMISSED BY TRIBUNAL IN LIMINE , BY HOLDING AS UNDER:- 2. NONE IS PRESENT ON BEHALF OF THE ASSESSEE DESPITE THE NOTICE FOR HEARING WAS SENT THROUGH REGISTERED POST AT THE ADDRESS GIVEN IN THE APPEAL PAPERS, WHICH IS RETURNED BY THE POSTAL AUTHORITIES WITH THE REMARK RECIPIENT IS NOT FOUND. NO OTHER ADDRESS IS AVAILABLE ON RECORD NOR ANY WRITTEN REQUEST FOR ADJOURNMENT ON BEHALF OF THE ASSESSEE IS AVAILABLE ON RECORD. IT APPEARS THAT THE ASSESSEE IS NOT INTERESTED IN PROSECUTING THE APPEAL. THEREFORE, THE APPEAL OF THE ASSESSEE DESERVES TO BE DISMISSED IN LIMINE FOR WANT OF PROSECUTION IN VIEW OF THE ORDERS OF TRIBUNAL IN CIT VS. MULTI PLAN INDIA (P) LTD., 38 ITD 320 (DEL.) AND M.P. HIGH COURT IN ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT, 223 ITR 480 (MP). 3. IN THE RESULT , THE APPEAL IS DISMISSED, AS INDICATED ABOVE. WE ARE OF THE CONSIDERED VIEW THAT PRINCIPLES OF NATURAL JUSTICE ARE PART OF BASIC STRUCTURE DOCTRINE AND IS AN ESSENTIAL PART TO UPHOLD RULE OF LAW. THE GRIEVANCE OF THE ASSESSEE WHICH IS ALSO SUPPORTED BY AN AFFIDAVIT FILED WITH TRIBUNAL IS THAT HIS APPEAL WAS HEARD AND DISMISSED BY TRIBUNAL EXPARTE IN HIS ABSENCE AND THAT SHE WAS NOT HAVING KNOWLEDGE OF THE DATE OF HEARING OF THE APPEAL BEFORE THE TRIBUNAL, WHICH APPEAL STOOD DISMISSED IN LIMINE BY TRIBUNAL IN HIS ABSENCE WITHOUT HEARING HIS ARGUMENTS. THE PRINCIPLES OF NATURAL JUSTICE ARE CLEARLY INFRINGED IN THIS CASE AS IT IS ON THE VERY FIRST DATE OF HEARING OF APPEAL , THE ASSESSEES APPEAL WAS DISMISSED . IT IS RECORDED IN THE APPELLATE ORDER THAT THE NOTICE WAS SENT TO ASSESSEE BY REGISTERED POST AT GIVEN ADDRESS , WHICH NOTICE STOOD RETURNED BY POSTAL AUTHORITIES, BUT THEREAFTER NO FURTHER ATTEMPTS WERE MADE TO SERVICE THE NOTICE. WE HAVE ALSO OBSERVED THAT THE TRIBUNAL HAS NOT DISCUSSED THE ISSUES RAISED BY ASSESSEE IN HIS APPEAL ON MERITS, IN THE APPELLATE ORDER PASSED BY TRIBUNAL IN ITA NO. 152/ALLD/2017 ,, DATED 14.12.2017 AND THE APPEAL WAS DISMISSED BY TRIBUNAL IN LIMINE WITHOUT DISCUSSING THE ISSUES MA NO. 3/ALLD/2018 ARISING OUT OF ITA NO. 152/ALLD/2017 YUNUSH FAROOQUI ASSESSMENT YEAR: 2011-12 4 RAISED BY ASSESSEE ON MERITS .WE FIND MERITS IN THE CONTENTIONS OF THE ASSESSEE RAISED IN THIS MA. WE ARE OF THE CONSIDERED OPINION THAT THE APPELLATE ORDER OF THE TRIBUNAL IN ITA NO. 152/ALLD/2017 , DATED 14.12.2017 FOR ASSESSMENT YEAR 2011-12 REQUIRES TO BE RECALLED AND THE APPEAL IS NOW RESTORED BACK TO THE FILE OF THE TRIBUNAL WITH THE SAME NUMBER AND DESCRIPTION , AND THE APPEAL IN ITA NO. 152/ALLD/2017 FOR AY: 2011- 12 IS NOW FIXED FOR HEARING BEFORE THE DIVISION BENCH, ON 01 ST FEBRUARY, 2021. THIS ORDER IN MA NO. 03/ALLD/2018 WAS PRONOUNCED IN THE PRESENCE OF BOTH THE PARTIES AND THE DATE OF HEARING OF THE APPEAL (ITA NO. 152/ALLD/2017) VIZ. ON 01.02.2021 IS ANNOUNCED IN OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES (ASSESSEE THROUGH HIS COUNSEL) AND NO SEPARATE NOTICE OF HEARING WILL NOW BE SENT BY TRIBUNAL TO BOTH THE PARTIES. THE ASSESSEE SUCCEEDS IN THIS MA. WE ORDER ACCORDINGLY. 3. IN THE RESULT, M.A. NO. 03/ALLD/2018 ARISING OUT OF ITA NO. 152/ALLD/2017 FOR ASSESSMENT YEAR 2011-12, IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/12/2020 ON THE CONCLUSION OF HEARING IN THE PRESENCE OF BOTH THE PARTIES, THROUGH VIDEO CONFERENCING. SD/- SD/- [VIJAY PAL RAO] [RAMIT KOCHAR] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11 /12/2020 SH COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) , ALLAHABAD 4. CIT 5. DR - BY ORDER ASSISTANT REGISTRAR