Sh. Brij Mohan , Pehowa V. ITO, W-1, Kurukshetra

MA 1/CHANDI/2021

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5097 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 year(s) 9 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-08-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-08-2024
• Assessment Year: misc
• Appeal Filed On: 07-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VED PARKASH KALIA
• Keywords: Opportunity of being heard; Bonafide belief
• Section: 192

Judgement Text

आयकर अपील य अ धकरण, च डीगढ़ यायपीठ, च डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, ‘A’, CHANDIGARH BEFORE SHRI A.D. JAIN, VICE PRESIDENT & SHRI VIKRAM SINGH YADAV, ACCOUNTANT MEMBER M.A.No.1/CHD/2021 in (आयकर अपील सं./ITA No. 162/CHD/2018) (Assessment Year : 2011-12 ) Shri Brij Mohan, S/o Shri Pala Ram, VPO Jalbehra, Tehsil – Pehowa, Kurukshetra. बनाम The ITO, Ward 1, Kuruksehtra. थायी लेखा सं./PAN NO: BHBPM5463L अपीलाथ /Appellant यथ /Respondent नधा रती क ओर से/Assessee by : Shri B.M. Monga, Advocate & Shri Rohit Kaura, Advocate राज व क ओर से/ Revenue by : Shri Ved Parkash Kalia, JCIT स ु नवाई क तार#ख/Date of Hearing : 09.08.2024 उदघोषणा क तार#ख/Date of Pronouncement : 12.08.2024 PHYSICAL HEARING आदेश /Order Per A.D. Jain, Vice President: The present Misc. Application arising out of ITA No. 162/Chd/2018 has been moved by the assessee pleading therein for recalling the order dated 07.09.2018 passed by the Tribunal. A delay of 222 days has been incurred in filing the M.A., as per the Registry. 2. The contents of the Miscellaneous Application, while also explaining the issue of delay, are as follows : MA. No. 1/Chd/2021 in ITA 162/Chd/2018 2 1. In this regard it is humbly submitted that assessee wants to file a modified M.A. i.e. M.A. No. 01/Chandi/2018 to be Miscellaneous Application under Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 for recalling the Order dated 07.09.2018, passed by this Hon'ble Court in ITA No. 162/Chandi/2018. 2. That the assessee appellant/applicant handed over the appeal documents to his counsel/advocate namely M/s Sharma Associates, Karnal, who filed an appeal with the ITAT, Delhi Benches. Later on, a letter was received from the Delhi Benches about objection of jurisdiction of Delhi Bench, copy of which was sent to M/s Sharma Associates, Karnal. 3. After receiving the aforesaid letter, the counsel namely M/s Sharma Associates, Karnal under bonafide belief again filed an appeal against the same order of Ld. CIT(A), before The Hon'ble Chandigarh ITAT. And in the meantime the Hon'ble ITAT, Delhi also transferred the appeal, so filed before the Hon'ble Delhi ITAT to Hon'ble Chandigarh ITAT. 4. Therefore, under bonafide and inadvertent mistake, 2 appeals got registered before the Hon'ble ITAT, Chandigarh bench i.e. Appeal No. 162/Chandi/2018 and Appeal No. 95/Chandi/2018. 5. That, on 9.5.2018, the Hon'ble ITAT, Chandigarh decided the ITA No. 95/Chandi/2018 in exparte proceedings, in limine and finally remanded the case back to the Ld. CIT(A) by holding "i n the result, the appeal of the assessee is treated as allowed for stati. Purposes”. 6. That further, on 7.9.2018, the Hon'ble ITAT, Chandigarh also decided the ITA No. 162/Chandi/2018 exparte proceedings, in limine dismissing the appeal for non-prosecution by holding " i n the result, the appeal of the assessee is dismissed in limine'. 7. That the assessee appellant/applicant, in the remand proceedings before the Ld. CIT(A), Karnal, received a remand report letter dated 6.9.2019, wherein it came to knowledge of the assessee that 2 separate 9orders have been passed by the Hon'ble ITAT, Chandigarh in 2 separate appeals on 9.5.2018 and 7.9.2018 in the same case of deponent and against the same order of Ld. CIT(A). 8. Thereafter, the assessee on 13.09.2019, immediately filed a letter before the Hon'ble ITAT, Chandigarh qua the 2 appellate orders and also prayed to adjudicate the said 2 order in single order to remove the ambiguity. 9. That vide letter dated 21.10.2019, the Hon'ble ITAT, Chandigarh directed the assessee herein, to file Misc. Application along with challan fees of Rs. 50/-. MA. No. 1/Chd/2021 in ITA 162/Chd/2018 3 10. That thereafter, the assessee immediately filed an Misc. Application on 8.11.2019 on which the registry of Hon'ble ITAT, Chandigarh raised an objection of being time barred by 222 days. 11. That it is humbly submitted that there is no time period prescribed under Rule 24 to move an application for recalling an exparte order and for this proposition reliance is being placed on the judgment of Hon'ble Allahabad High Court in the case of Purnagiri Rice Mill Vs. UOI, [2023] 156 taxmann.com 435 (Allahabad HC) and on the judgment of Hon'ble Delhi High Court in the case of Cement Corporation of India Ltd. Vs. ACIT, [2023] 149 taxmann.com 192 (Delhi HC). 12. However, even if for argument sake any delay is to be counted then it is humbly submitted that whatever delay has occurred, i.e. of 222 days, it is due to inadvertent and bonafide mistake on the part of the assessee and his counsel due to which the assessee has been severely prejudiced and therefore the assessee humbly prays to kindly condone the delay as condoning the delay in filing the appeal will not cause any prejudice to the 'Revenue' and further will serve the cause of justice and meet the ends of justice. 13. Therefore, the assessee applicant/ appellant also humbly prays and submit that the Misc. Application so filed by the assessee before this Hon'ble ITAT, on 8.11.2019, may kindly be treated as application filed under Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 as the appellate order passed in ITA No. 162/Chandi/2018 is an exparte order, in limine and because of non prosecution and therefore the aforesaid Misc. application filed by the deponent fulfills all the ingredients of application under Rule 24 of Income Tax (Appellate Tribunal) Rules, 1963. 14. Thus it is numbly prayed that the impugned order may kindly be recalled and after giving opportunity of being heard/ considering material on record and after hearing the assessee, be rectified, as this order has caused great prejudice to the assessee-appellant and recalling this order for affording an opportunity of being heard will not cause any prejudice to the Revenue department.” 3. The assessee has requested to condone the delay of 222 days in filing the present Miscellaneous Application. After perusing the facts and circumstances of the case and also considering the request MA. No. 1/Chd/2021 in ITA 162/Chd/2018 4 of the assessee, the delay of 222 days in filing the Miscellaneous Application is hereby condoned in view of judgement of Hon'ble Allahabad High Court in the case of Purnagiri Rice Mill Vs UOI [2023] 156 taxmann.com 435 and judgement of Hon'ble Delhi High Court in the case of Cement Corporation of India Ltd. Vs ACIT [2023] 149 taxmann.com 192. 4. Heard. We feel convinced with the submissions made by the assessee in the application and, therefore, in the interest of justice, we recall the order of the Tribunal dated 07.09.2018 passed in the above captioned appeal and restore the appeal to its original position, to be heard afresh on merits. 5. The Registry is directed to fix the appeal for regular hearing. 6. In the result, the Miscellaneous Application filed by the assessee is allowed. Order pronounced in the Open Court on 12.08.2024. Sd/- Sd/- (VIKRAM SINGH YADAV) ( A.D. JAIN ) ACCOUNTANT MEMBER VICE PRESIDENT “Poonam” आदेश क琉 灹ितिलिप अ灡ेिषत/ Copy of the order forwarded to : 1. अपीलाथ牸/ The Appellant 2. .灹瀄यथ牸/ The Respondent 3. आयकर आयु猴/ CIT 4. िवभागीय 灹ितिनिध, आयकर अपीलीय आिधकरण, च瀃डीगढ़/ DR, ITAT, CHANDIGARH 5. गाड榁 फाईल/ Guard File आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar