Jai Sharefin Limited, Ahmedabad V. ITO, Ward-1(3)(2), Ahmedabad

MA 104/AHD/2022

AI Insights

The case involves Jai Sharefin Ltd., which filed a Miscellaneous Application seeking the recall of an ex parte order passed by the ITAT due to non-receipt of hearing notices. The assessee argued that the notices were sent to an old address, as the new address was not updated in the official records. The Tribunal noted the significant discrepancy between the returned income and the addition made, which was substantially higher than the reported loss, indicating a potentially meritorious case. The Department opposed the recall, citing the assessee's negligence in updating the address. Ultimately, the Tribunal decided to recall the appeal for a hearing, imposing a cost on the assessee for the oversight.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 133669 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC-1
• Next Hearing Date: 19-01-2023
• Assessment Year: 2008-2009
• Appeal Filed On: 06-12-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation; Reasonable cause

Judgement Text

आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरणआयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण, अहमदाबाद 瀈यायपीठ अहमदाबाद 瀈यायपीठअहमदाबाद 瀈यायपीठ अहमदाबाद 瀈यायपीठ ‘SMC’ अहमदाबाद। अहमदाबाद।अहमदाबाद। अहमदाबाद। IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, AHMEDABAD ] ] BEFORE SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER Misc. Application No.104/Ahd/2022 IN ITA No.240/Ahd/2019 Asstt.Year : 2008-09 Jai Sharefin Ltd. 20, Devkutir Bungalows-1 Nr.Swagat Plaza-2 Iskon Ambli Road Ahmedabad. Vs ITO, Ward-1(3)(2) Ahmedabad. (Applicant) (Responent) Assesseeby : Shri Tej Shah, AR Revenue by : Shri Atul Pandey, Sr.DR स ु नवाई क तार ख/D a t e o f H e a r i n g : 2 0 / 0 1 / 2 0 2 3 घोषणा क तार ख /D a t e o f P r o n o u n c e m e n t : 2 5 / 0 1 / 2 0 2 3 आदेश/O R D E R By this Misc. Application, the assessee seeks recall of the ex parte order passed by the ITA in ITA No.240/Ahd/2019 dated 28.9.2022. 2. The constant refrain of the ld.counsel for the assessee before me was that the assessee had shifted to new premises, and was not in receipt of the notice of hearing before the ITAT, and hence, non- appearance in hearing of the appeal. An affidavit of the Director of the assessee-company affirming the said facts on oath was also filed, which contents as under: (i) The aforesaid appeal was fixed for hearing on 19-09-2022. However, the same was dismissed for want of prosecution. A copy of the said order is annexed hereto and marked as "Annexure-A". MA No.104/Ahd/2022 2 (ii) The applicant submits that it had shifted its address to 20, Dev Kutir Bungalows - 1, Near Swagat Plaza - 2, Iscon Ambli Road, Ahmedabad - 380058. All notices of hearing were sent to the old address as mentioned in Form No. 36 and the applicant could not be made aware of such notices. Even the order dismissing the appeal was not received by the applicant. It is only when notice of demand was received from the AO, that the applicant checked the status of its case online and came to know about the impugned order. (iii) The applicant admits that because of inadvertence the new address was not mentioned in Form 36 during the time of filing of appeal. Therefore, it is humbly requested to this Hon'ble court that this mistake on the part of the applicant be pardoned and one more opportunity be granted since, the case is meritorious and deserves to be appreciated. (iv) The period of limitation to file an M.A. is within 6 months from! the date of receipt of dismissal order (from the website) which is around 17-11- 2022. Hence the present M.A. is filed within the period of limitation.” 3. On this, the ld.counsel for the assessee was asked as to when the assessee had shifted to new premises since it was noticed that even before the ld.CIT(A), the assessee had remained unrepresented and had not responded to the notice sent to him. He was also asked as to whether change of address, had at any point of time been notified to the Department. To this, the ld.counsel of the assessee admitted that though the assessee had changed his address quite a few years back, but inadvertently and in a mechanical manner had repeated his old address only in the return of income filed. He stated that in the current regime of income-tax assessment, since the communication is being sent to email address of the assessee, the assessee forgot to state correct physical address in his return of income. The ld.counsel for the assessee pleaded that the assessee be not punished for this fault of his, and apologized profusely for the mistake of the assessee before us. He stated that the assessee has a good case in the appeal, and would be unfairly burdened with levy of tax, interest and possibility of penalty and prosecution also would follow as a consequence. He pleaded, therefore, that the appeal be recalled for hearing. MA No.104/Ahd/2022 3 4. The ld.DR, however, stated that the assessee was not proactive and rather careless in pursuing his appeal, and had admitted of even not notifying correct address to the Department, and such person should not be shown any benevolence . He strongly opposed allowing recall of the assesses appeal for hearing afresh as sought vide this application before us. 5. I have heard both the parties. The reasonable cause adduced by the Ld.Counsel for the assessee for recalling the exparte order passed by the ITAT, is non receipt of notices of hearing . The blame though for the same admittedly lies on the assessee itself for not having intimated the department at the earliest of the change in address. It is only the present Miscellaneous application which has been filed mentioning the change of address. This callous attitude of the assessee has continued right from the first appellate proceedings before the Ld.CIT(A) and upto the ITAT. Such assesses surely do not deserve any leniency in such matters. But at the same time we have noted that the addition made in the present case is multiple times the returned income of the assessee. While the returned income of the assessee is loss of Rs.63,745/- addition made and in challenge before us is to the tune of Rs.14,22,260/-,i.e almost 25 times the returned income. The Ld. Counsel for the assessee has stated before me that the assessee will be vigilant hence forth in arguing the appeal. In the light of the same, I consider it fit to recall the appeal to be adjudicated after hearing the assessee. Needless to add that if the assessee abuses the trust reposed in it, failing to appear without reasonable cause, the appeal shall be disposed off accordingly. Further the admitted lapse on the part of the assessee cannot be allowed to be let off without taking note of it. A cost of Rs.1000/- is levied on the assessee to be deposited in the Chief Minister’s Relief MA No.104/Ahd/2022 4 Fund. Hearing in the recalled appeal will be taken up subject to the assessee satisfying the court of the deposit of the cost so levied. Also the assessee is directed to file revised form No.36 mentioning the correct address for communication. Registry is directed to list the appeal in regular course thereafter. 6. In the result, the MA of the assessee is allowed in the above terms. Order pronounced in the Court on 25 th January, 2023 at Ahmedabad. Sd/- (ANNAPURNA GUPTA) ACCOUNTANT MEMBER Ahmedabad,dated 25/01/2023 vk*