Suman Tulsidas Makhija, Ahmedabad V. ITO, Ward-7(2)(5), Ahmedabad

MA 103/AHD/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3366 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-08-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 16-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVATIA
• Section: 250; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) (THROUGH VIRTUAL COURT) M.A. NO: 103/AHD/2020 (IN ITA NO. 656/AHD/2018) (ASSESSMENT YEAR: 2014-15) SUMAN TULSIDAS MAKHIJA 20, ISCON VILLA, NR. INDIRA VILLAGE, HANSOL SARDARNAGAR, AHMEDABAD- 382475 V/S INCOME TAX OFFICER, WARD- 7(5)(5), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: ACJPM2666D APPELLANT BY : SHRI S.N. DIVATIA, A.R. RESPONDENT BY : SHRI VINOD TANWANI SR. D.R. ( )/ ORDER DATE OF HEARING : 20 -08-2020 DATE OF PRONOUNCEMENT : 24 -08-2020 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. BY VIRTUE OF THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE U/S 254(2) OF THE ACT, THE ASSESSEE INTENDS TO RECALL THE IMPUGNED EX PARTE ORDER DT. 24-12- 2019 PASSED BY THIS TRIBUNAL. M.A. NO 103AHD/2020 . A.Y. 2014-15 2 2. THE LD. AR BEFORE US SUBMITTED AS UNDER: 1. THE APPLICANT ABOVE NAMED SUBMITS THIS MISC. APPLICATION U/S. 254(2) OF THE IT ACT 1961 (FOR SHORT 'THE ACT') FOR RECTIFICATION OF THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD BENCH- D, AND AHMEDABAD, WHEREBY THE APPEAL OF THE APPLICANT HAS BEEN DISMISSED. 2. THE APPLICANT SUBMITS THAT BEING AGGRIEVED AND DISSATISFIED WITH THE ORDER PASSED U/S 250 OF THE ACT ON 07-11-2017 BY CIT(A)-7 HE HAD PREFERRED AN APPEAL BEFORE THE APPELLATE TRIBUNAL WHEREIN THE APPLICANT HAD CHALLENGED THE ADDITION TOWARDS LONG TERM CAPITAL GAIN OF RS.17,02,229/-. 3. THE AFORESAID APPEAL HAS BEEN DISMISSED IN LIMINE HOLDING THAT NOTICE WAS SENT THROUGH REGISTERED ADDRESS AS PER FORM 36 WHICH RETURNED UNSERVED. SINCE NO REPRESENTATION WAS MADE ON BEHALF OF APPELLANT NOR ANY ADJOURNMENT WAS TAKEN, IT WAS CONSIDERED THAT APPELLANT IS NOT SERIOUS IN PERUSING THE APPEAL FILED. 4. THE APPLICANT SUBMIT WITH GREATEST RESPECT THAT THERE WAS A SUFFICIENT CAUSE FOR FAILURE TO ATTEND ON THE DATE OF HEARING FIXED ON 24-12-2019 BECAUSE THE SAID NOTICE OF HEARING HAS NOT BEEN SERVED ON THE APPLICANT AT THE ADDRESS GIVEN IN THE APPEAL MEMO. HENCE THE APPLICANT WAS NOT AWARE ABOUT THE DATE OF HEARING WHICH RESULTED INTO NON-ATTENDANCE OR NON -COMPLIANCE. IT WAS PROBABLY THE FIRST NOTICE OF HEARING. THERE WAS NO WILLFUL OR DELIBERATE INTENTION TO NON- COMPLY OR UN-ATTEND THE NOTICE. THE APPLICANT IS VERY MUCH ANXIOUS TO CONDUCT THE APPEAL AND NO DEFAULT HAS BEEN MADE IN THE PAST. HENCE, THE PRESENT APPLICATION. THE EX-PARTY DISPOSAL HAS CAUSED GREAT INJUSTICE AND HARDSHIP TO THE APPLICANT. 5. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES, THE APPLICANT SUBMITS THAT THE ORDER PASSED BY THE HON'BLE TRIBUNAL SHOULD BE RECALLED AND THE APPEALS SHOULD BE FIXED FOR FRESH HEARING FOR DISPOSAL ON MERITS, OTHERWISE IT WOULD CAUSE GREAT INJUSTICE AND HARDSHIP TO THE APPLICANT WITHOUT ANY CAUSE ATTRIBUTABLE TO IT. 6. NEEDLESS TO SAY FOR THIS ACT OF KINDNESS, THE APPLICANT AS IN DUTY BOUND SHALL FOREVER PRAY AND REMAIN GRATEFUL. 3. ON THE OTHER HAND THE LD. DR RAISED NO OBJECTION IF THE MATTER IS RECALLED FOR FRESH ADJUDICATION AS PER THE PROVISION OF LAW. 4. HEARD RIVAL SUBMISSIONS AND PERUSED THE RECORD. ON PERUSAL OF THE ORDER DT. 24-12-2019, WE FIND THAT IN SPITE OF SERVICE OF NOTICES BY THE REGISTRY NEITHER ANY ONE APPEARED NOR THERE WAS ANY ADJOURNMENT APPLICATION FILED ON BEHALF OF ASSESSEE FOR THE HEARING ON 24-12-2019. THUS, FOLLOWING THE VARIOUS DECISIONS IN THE CASES OF MULTIPLAN INDIA (P) LTD REPORTED IN 38 ITD 320 (DEL), HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT REPORTED IN 223 ITR 480(MP) THE TRIBUNAL DISMISSED THE APPEAL OF ASSESSEE BY PASSING EX PARTE ORDER FOR NON PROSECUTION. WE FIND THAT THERE WAS M.A. NO 103AHD/2020 . A.Y. 2014-15 3 SUFFICIENT REASON FOR THE ASSESSEE IN NOT APPEARING BEFORE THE TRIBUNAL ON THE SAID DATE OF HEARING [24-12- 2019]. THEREFORE, IN VIEW OF SUBMISSION OF ASSESSEE WE RECALL THE ORDER DATED 24-12-2019 BY ALLOWING THIS MISC. APPLICATION FILED BY THE ASSESSEE. 5. NEXT DATE OF HEARING IN THIS MATTER IS 20/10/2020 AND SAME HAS BEEN COMMUNICATED TO BOTH THE PARTIES AND NO SEPARATE NOTICE WILL BE SENT TO ANY OF THE PARTIES. 6. IN THE RESULT, THE MISC. APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 24 - 08- 2020 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 24/08/2020 RAJESH COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD