Kanodia Investment Pvt. Ltd., Allahabad V. DCIT(CPC), Bengaluru

MA 1/ALLD/2023

AI Insights

The case involves Kanodia Investment Private Limited, which filed a Miscellaneous Application (M.A. No. 1/Alld/2023) seeking the recall of an ex-parte appellate order passed by the Income Tax Appellate Tribunal, Allahabad. The original appeal (ITA No. 8/Alld/2022) was dismissed ex-parte due to the non-appearance of the assessee's counsel, who was unable to attend the hearing on 19th July 2022 due to a family medical emergency. The assessee argued that this constituted a sufficient cause under Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963, and provided medical evidence to support their claim. The tribunal agreed with the assessee's position, noting the non-negligent conduct of the assessee in previous hearings and the serious nature of the circumstances that led to the non-appearance on the critical date.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 129848 (ITAT-ALLAHABAD)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-03-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-03-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 17-01-2023
• Laws Referred To: Income Tax (Appellate Tribunal) Rules, 1963, Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay

Judgement Text

M.A. No. 1/Alld/2023 arising out of ITA No. 8/Alld/2022 Assessment Year 2015-16 Kanodia Investment Private Limited, Allahabad v.DCIT(CPC), Bengaluru 1 C.A. Shri S.K.Jaiswal Appellant by: IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD BENCH,ALLAHABAD BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER Miscellaneous Application (M.A.) No.1/Alld/2023 [Arising out of ITA No. 8 /Alld/2022] Assessment Year: 2015-16 Kanodia Investment Private Limited 1, Lukerganj, Allahabad-211001, U.P. v. The DCIT, CPC, Bengaluru PAN: AABCK0604Q (Appellant) (Respondent) ORDER [[[ PER: SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER: This Miscellaneous Application bearing M.A. No. 1 /Alld/2023 for assessment year 2015-16 has been filed by the assessee M/s Kanodia Investment Private Limited, which has arisen out of ITA No. 8/Alld/2022 for assessment year 2015- 16. This M.A. was heard by Division Bench(DB) of Income-Tax Appellate Tribunal, Allahabad Bench, Allahabad,U.P. in physical hearing mode in the Open Court proceedings. Vide this M.A. , the assessee is seeking recall of an ex-parte appellate order in ITA no. 8/Alld/2022, dated 21.07.2022 passed by tribunal. The MA filed by assessee is reproduced hereunder: Respondent by: Sh. A.K. Singh, Sr. D.R. Date of hearing: 17.03.2023 Date of pronouncement: 17.03.2023 M.A. No. 1/Alld/2023 arising out of ITA No. 8/Alld/2022 Assessment Year 2015-16 Kanodia Investment Private Limited, Allahabad v.DCIT(CPC), Bengaluru 2 M.A. No. 1/Alld/2023 arising out of ITA No. 8/Alld/2022 Assessment Year 2015-16 Kanodia Investment Private Limited, Allahabad v.DCIT(CPC), Bengaluru 3 2. The ld. Counsel for the assessee CA Shri S. K. Jaiswal stated before the Division Bench that the appeal in ITA no. 8/Alld/2022 for assessment year 2015-16 was filed by assessee on 17.02.2022, and he duly appeared before Division Bench when this appeal was called for hearing before Division Bench on two earlier occasions M.A. No. 1/Alld/2023 arising out of ITA No. 8/Alld/2022 Assessment Year 2015-16 Kanodia Investment Private Limited, Allahabad v.DCIT(CPC), Bengaluru 4 viz. on 27th April, 2022 and 28 th June, 2022 , wherein he sought adjournments on both the occasions which were granted by the Division Bench . CA Shri S.K.Jaiswal , the ld. Counsel for the assessee made statement before the Bench that it is only when the appeal came up for hearing before the Division Bench on 19 th July, 2022 , he could not appear before Division Bench as his real brother , who is living in village at District Jaunpur, was seriously ill and suddenly he had to go to Jaunpur for his medical treatment, and hence he could not attend the hearing before the Division Bench on 19 th July, 2022. The ld. Counsel for the assessee stated that the Division Bench heard the matter ex-parte in the absence of the assessee on 19 th July, 2022. He also stated before the DB that immediately on coming to know of the ex-parte hearing of the appeal by the DB on 19 th July, 2022, he made mention before DB in open Court on the very next date on 20.07.2022 explaining his reasons for non- appearance on 19 th July, 2022. Our attention was drawn to Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 , and ld. Counsel for the assessee submitted that there was a sufficient cause which prevented him for appearing before the DB on 19 th July, 2022, and the conduct of the assessee before tribunal cannot be said to be negligent rather the assessee is vigilant in appearing before the tribunal. It is also averred that it is true that the first appeal was filed belatedly by 1473 days with ld. CIT(A) beyond the time prescribed u/s 249(2)(b) of the 1961 Act, but there were valid reasons for filing appeal belatedly. The ld. Counsel for the assessee drew our attention to the medical evidences of illness and medical treatment of Shri. S.K. Kanodia, Managing Director of the assessee company from the year 2015 to 2021 by Doctors/Hospitals , which are running into 118 pages (placed on record in file in PB 1-118)). It was submitted that all these evidences were filed before ld. CIT(A) along with application for condonation of delay , but ld. CIT(A) refused to condone the delay and the first appeal stood dismissed by ld. CIT(A) as an un-admitted appeal. It was submitted that serious prejudice is caused to the assessee by dismissing the appeal of the assessee by ld. CIT(A) by refusing to condone the delay. He submitted M.A. No. 1/Alld/2023 arising out of ITA No. 8/Alld/2022 Assessment Year 2015-16 Kanodia Investment Private Limited, Allahabad v.DCIT(CPC), Bengaluru 5 that Shri S K Kanodia, Managing Director of the assessee company , ultimately expired on 28.04.2022. The death certificate is enclosed(page 119/PB). It is further submitted by ld. Counsel that appeal of the assessee was also dismissed by the tribunal ex-parte in the absence of the assessee, and prayers were made that the assessee is not negligent as the counsel for the assessee appeared before tribunal on two earlier occasions when this appeal was listed for hearing before DB , and it is only on the third occasion when this appeal was listed for hearing on 19 th July, 2022, the counsel for the assessee could not appear due to sufficient cause being serious illness of brother of the assessee wherein he had to rush to Jaunpur for medical treatment of his brother. Prayers were made to recall the appellate order dated 21.07.2022 passed by tribunal. The ld. Sr. DR fairly submitted that the Bench can take decision as to recalling of the aforesaid appellate order. After hearing both the parties and carefully perusing the record, we are of the considered view that the appellate order dated 21 st July, 2022 needed to be recalled and the appeal in ITA no. 8/Alld/2022 for assessment year 2015-16 is to be listed for fresh hearing before DB. The assessee filed an appeal on 17 th February, 2022. The appeal was listed for hearing before DB earlier on two occasions viz. on 27 th April, 2022 and 28 th June, 2022, and on both these occasions the ld. counsel for the assessee CA Shri S K Jaiswal duly appeared before DB and sought adjournment, which were granted by the Bench. On the other occasions, when this appeal was listed for hearing before DB, the Bench did not function on that date and no hearing could take place. It is only on 19 th July, 2022 , when this appeal was again listed for hearing before DB , the ld. Counsel for the assessee(and/or assessee in person) did not appear before DB nor any adjournment application was filed. The Bench proceeded to hear the appeal ex-parte in the absence of the assessee (and/or his counsel) , after hearing ld. Sr. DR. The appellate order was passed by tribunal on 21.07.2022, dismissing appeal of the assessee . Now, the assessee has filed this M.A. seeking recall of an ex-parte appellate order dated 21.07.2022 passed by tribunal in ITA no. 8/Alld/2022. The M.A. No. 1/Alld/2023 arising out of ITA No. 8/Alld/2022 Assessment Year 2015-16 Kanodia Investment Private Limited, Allahabad v.DCIT(CPC), Bengaluru 6 assessee’s conduct is not negligent so far as its appearance before tribunal is concerned , as on both the earlier occasions when this appeal was listed before DB for hearing , the ld. Counsel for the assessee CA Shri S K Jaiswal duly appeared and sought adjournment, which were granted by the DB. It is only on 19 th July, 2022, the ld. Counsel for the assessee(and/or assessee in person) did not appear before the Bench nor any adjournment application was filed , and now the assessee has shown sufficient cause for non-appearance and the over all conduct of the assessee is not negligent . Reference is drawn to Rule 24 of the Income Tax(Appellate Tribunal) Rules, 1963 , and in our considered view, it is a fit case for recall of an ex-parte order dated 21.07.2022 passed by the tribunal in ITA no. 8/Alld/2022 for assessment year 2015-16, under Rule 24 of Income Tax (Appellate Tribunal) Rules, 1963 read with proviso, keeping in view sufficient cause shown for non appearance on the date of hearing on 19.07.2022 as also keeping in view overall conduct of the assessee before tribunal. The assessee has also brought on record evidences running into 118 pages of illness as well medical treatment of Shri S. K. Kanodia, Managing Director of the company, from the year 2015-21 by Doctors/Hospitals, which it is claimed was the reasons in filing first appeal belatedly before ld. CIT(A). It is claimed that these evidences were also filed before ld. CIT(A) , but ld. CIT(A) refused to condone the delay of 1473 days in filing first appeal belatedly beyond the time prescribed u/s 249(2)(b) of the 1961 Act. It is also submitted that Shri S. K. Kanodia ultimately expired on 28.04.2022. The death certificate is enclosed (Page 119/PB) . It is claimed that the tribunal has also dismissed the appeal ex-parte by upholding the decision of ld. CIT(A) in refusing to condone the delay in filing the first appeal belatedly beyond the time prescribed u/s 249(2)(b) , and prayers are made to recall the appellate order passed by tribunal , so that the assessee be heard on merits and the asessee is not condemned un-heard. The Revenue has also not raised any serious challenge objecting to recall of the appellate order dated 21.07.2022 passed by tribunal. Thus, keeping in view the entire factual matrix, we are recalling the ex- M.A. No. 1/Alld/2023 arising out of ITA No. 8/Alld/2022 Assessment Year 2015-16 Kanodia Investment Private Limited, Allahabad v.DCIT(CPC), Bengaluru 7 parte order dated 21.07.2022 passed by ITAT, Allahabad Bench in ITA no. 8/Alld/2022 under Rule 24 of Income Tax(Appellate Tribunal) Rules, 1963 read with proviso , and list the appeal in ITA no. 8/Alld/2022 for assessment year 2015- 16 for hearing before Division Bench on, 26 th April, 2023, which listing date is announced in Open Court on the conclusion of the hearing of the M.A. , in the presence of both the parties which was duly noted by both the parties, and thus, no fresh notice of hearing shall be issued to both the parties. We clarify that we have not commented on the merits of the issue in appeal in ITA no. 8/Alld/2022. We order accordingly 3.In the result, M.A. No. 1/Alld/2023 arising out of ITA nos. 8/Alld/2022, for ay: 2015- 16 stand allowed. We order accordingly. Order pronounced in Open Court on 17/03/2023 at Allahabad, U.P. after conclusion of hearing before both the parties Sd/- Sd/- [VIJAY PAL RAO] [RAMIT KOCHAR] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:17/03/2023 Copy forwarded to: 1. Appellant –M/s Kanodia Investment Private Limited, 1, Lukerganj, Allahabad-211001, U.P. 2. Respondent –DCIT, CPC, Bengaluru 3. CIT, Allahabad, U.P. 4. Sr. DR, ITAT, Allahabad By order Assistant Registrar