SHRI DINESH OJHA, JAIPUR V. INCOME TAX OFFICER, WARD-6-4, JAIPUR

MA 07/JPR/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6384 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 25-02-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RUNI PAL CIT DHK
• Assessee Lawyers: NITIN MORTHIA
• Keywords: Principle of natural justice

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES B, JAIPUR JH LANHI XLKA ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM M.A. NO. 07/JP/2021 (ARISING OUT OF VK;DJ VIHY LA -@ ITA NO. 40/JP/2019 ASSESSMENT YEAR: 2009-10 DINESH OJHA, B-63, KIRTI NAGAR, TONK ROAD, JAIPUR- 302006. VS. I.T.O., WARD 6(4), JAIPUR. P AN NO. AAEPO 9604 N VIHYKFKHZ@ APPELLANT IZR;FKHZ @ RESPONDE N T FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI NITIN MORTHIA (ADV) JKTLO DH VKSJ LS @ REVENUE BY : SMT. RUNI PAL (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19/03/2021 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 19/04/2021 VKNS'K@ ORDER PER: SANDEEP GOSAIN, J.M. THE PRESENT MISC. APPLICATION HAS BEEN FILED BY THE LEGAL REPRESENTATIVE OF THE DECEASED ASSESSEE NAMELY DINESH OJHA ON THE GROUND THAT THE MAIN APPEAL BEING ITA NO. 40/JP/2019 WAS DECIDED BY THE TRIBUNAL VIDE ITS ORDER DATED 12/10/2020 WHEREBY THE APPEAL OF THE ASSESSEE WAS DISMISSED. 2. THE HEARING OF THIS M.A. WAS CONCLUDED THROUGH VIDEO CONFERENCE IN VIEW OF THE PREVAILING SITUATION OF COVID-19 PANDEMIC. MA 07/JP/2021_ DINESH OJHA VS ITO 2 3. IT WAS SUBMITTED BY THE APPLICANT THAT THE ASSESSEE DINESH OJHA WHO FILED THE MAIN APPEAL HAD DIED ON 12/02/2019 I.E. DURING THE PENDENCY OF THE APPEAL AND LEGAL REPRESENTATIVE OF THE ASSESSEE COULD NOT BE BROUGHT ON RECORD AS THE APPLICANT WHO CLAIMS HERSELF TO BE WIFE OF DINESH OJHA HAD NO INFORMATION ABOUT THE CASE AND BEING THE HOUSE WIFE SHE WAS NOT ACQUAINTED WITH THE LEGAL OBLIGATIONS FOR BRINGING ON RECORD THE AUTHORISED REPRESENTATIVE, THEREFORE, IN ABSENCE OF ANY AUTHORISED REPRESENTATIVE, THE APPEAL WAS DISMISSED ON 12/10/2020. 4. IT WAS FURTHER SUBMITTED BY THE APPLICANT THAT THE A.O. HAD WRONGLY CONFIRMED THE AMOUNT OF ADDITION OF RS. 4,66,563/- TOWARDS CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE OUT OF NORMAL TRANSACTION OF BUSINESS TRADE. ACCORDING TO THE APPLICANT, THE ENTIRE AMOUNT RELATES TO OLD DEBTORS. IT WAS FURTHER SUBMITTED THAT BECAUSE OF COVID-19 PANDEMIC, THE APPLICANT COULD NOT RECEIVE ANY INFORMATION ABOUT THE CASE AND THAT WAS THE REASON FOR NON-APPEARANCE AND NOT MAKING AN APPROPRIATE APPLICATION FOR BRINGING ON RECORD THE AUTHORISED REPRESENTATIVE AT THE TIME WHEN APPEAL WAS PENDING. LASTLY, IT WAS SUBMITTED THAT THE APPEAL BEARING NO. 40/JP/2019 BE RESTORED AND OPPORTUNITY BE GRANTED TO THE APPLICANT OF BEING HEARD AND THE APPEAL MAY BE DECIDED AFRESH IN ACCORDANCE WITH PROVISIONS OF LAW. MA 07/JP/2021_ DINESH OJHA VS ITO 3 5. ON THE CONTRARY, THE LD DR HAS CONTESTED THE SAID APPLICATION FILED BY THE APPLICANT AND SUBMITTED THAT THERE IS NO ERROR WHICH IS APPARENT FROM THE RECORD AND IT WAS THE DUTY OF THE APPLICANT TO MOVE AN APPLICATION AT THE APPROPRIATE TIME FOR BRINGING ON RECORD THE AUTHORISED REPRESENTATIVE, THEREFORE, IT WAS SUBMITTED THAT THE PRESENT APPLICATION FILED BY THE APPLICANT MAY BE DISMISSED. 6. WE HAVE HEARD THE LD. COUNSELS OF BOTH THE PARTIES AND HAVE GONE THROUGH THE DOCUMENTS PLACED ON RECORD. IT IS AN ADMITTED FACT THAT THE MAIN APPEAL WAS FILED BY THE ASSESSEE DINESH OJHA AND THE SAID DINESH OJHA HAD DIED DURING THE PENDENCY OF THE APPEAL. IN THIS RESPECT, COPY OF DEATH CERTIFICATE OF DINESH OJHA HAS ALSO BEEN PLACED ON RECORD BY THE APPLICANT AND THE APPLICANT HAS ALSO PLACED ON RECORD THE COPY OF HER AADHAR CARD WHEREIN ALSO IT IS CLEARLY DEPICTED THAT THE APPLICANT IS THE WIFE OF ASSESSEE DINESH OJHA. IT IS ALSO AN ADMITTED FACT THAT THE APPEAL WAS DECIDED BY THE TRIBUNAL ON 12/10/2020 AND THE ORDER WAS PASSED AGAINST THE DECEASED ASSESSEE DINESH OJHA. 7. BE THAT AS IT MAY, WE ARE NOT TOUCHING THE MERITS OF THE APPEAL AT THIS STAGE, HOWEVER, CONSIDERING THE INTEREST OF JUSTICE THAT THE APPEAL WAS DECIDED AGAINST A DEAD ASSESSEE AS IN THE PRESENT CASE, THE ASSESSEE HAD ALREADY DIED ON 12/2/2019 AND THE APPEAL WAS SUBSEQUENTLY DECIDED AGAINST THE ASSESSEE ON 12/10/2020 AND BECAUSE OF COVID-19 PANDEMIC, MA 07/JP/2021_ DINESH OJHA VS ITO 4 THE APPLICANT COULD NOT MOVE APPLICATION IN TIME BEFORE THE TRIBUNAL, THEREFORE, CONSIDERING THE PRINCIPLES OF NATURAL JUSTICE, EQUITY AND FAIR PLAY, WE ALLOW THE PRESENT APPLICATION AND RECALL THE ORDER OF THE TRIBUNAL DATED 12/10/2020 AND DIRECTED THE REGISTRY TO FIX THE APPEAL ACCORDINGLY WITH A CONDITION THAT THE APPLICANT WOULD COMPLY WITH ALL THE MANDATORY REQUIREMENTS CONTAINED IN RULE 26 OF THE APPELLATE TRIBUNAL RULES, 1963 BY FILING REVISED FORM-36 CONTAINING THE DETAILS OF LEGAL/AUTHORIZED REPRESENTATIVE OF THE DECEASED WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER. WE ORDER ACCORDINGLY. 8. IN THE RESULT, THIS MISC. APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH APRIL, 2021. SD/- SD/- FOE FLAG ;KNO LANHI XLKA (VIKRAM SINGH YADAV) (SANDEEP GOSAIN) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 19/04/2021 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- LATE DINESH OJHA, L/R- HINAL OJHA, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD 6(4), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (MA NO. 07/JP/2021) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR