Mr.Swarup Dutta, Howrah V. I.T.O.,Ward-48(4), Kolkata

MA 104/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5876 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 1999-2000
• Appeal Filed On: 24-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 MA NO. 44/KOL/2019 DR. SAUMABHA DASGUP TA, AY- 2009-10 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] MA NO. 104/KOL/2019 IN I.T.A. NO. 2031/KOL/2008 ASSESSMENT YEAR: 1999-2000 SHRI SWARUP DUTTA (PAN: AGKPD9230B) VS. INCOME-TAX OFFICER, WARD-48(4), KOLKATA. APPLICANT RESPONDENT DATE OF HEARING 28.06.2019 DATE OF PRONOUNCEMENT 07.08.2019 FOR THE APPLICANT SHRI SOUMITRA CHOUDHURY, ADVOCATE & SHRI JAYDEEP CHAKRABORTY, ADVOCATE FOR THE RESPONDENT SHRI C. J. SINGH, JCIT, SR. DR ORDER PER SHRI A.T.VARKEY, JM THIS MISC. APPLICATION HAS BEEN FILED BY THE ASSESS EE AGAINST THE EX PARTE ORDER PASSED BY THE TRIBUNAL DATED 06.04.2009 IN ITA NO. 2031/KOL/2008 FOR AY 1999-2000. 2. AT THE OUTSET ITSELF, WE NOTE THAT THIS IS AN EX PARTE ORDER PASSED BY THE TRIBUNAL IN THIS MATTER ON 06.04.2009. AT THE TIME OF HEARING, LD. AR FOR THE ASSESSEE SUBMITTED THAT ON THE DATE OF HEARING THE LD. AR OF THE ASSESSEE C OULD NOT APPEAR BEFORE THE BENCH SINCE THE ASSESSEE HAD NOT BEEN SERVED ANY NOTICE OF HEAR ING. AND IT WAS BROUGHT TO OUR NOTICE THAT ASSESSEE WAS UNAWARE OF THE FACT OF THE IMPUGN ED EX PARTE ORDER. THEREAFTER, RECENTLY THE TRO STARTED PRESSING FOR DEMAND THEN ONLY THE A SSESSEE ON ENQUIRY REALIZED THAT THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED EX PARTE, SO IMMEDIATELY ASSESSEE APPLIED FOR A CERTIFIED TRUE COPY OF THE SAME ON 07.03.2019 AND R ECEIVED A COPY OF THE SAME ON 2 MA NO. 44/KOL/2019 DR. SAUMABHA DASGUP TA, AY- 2009-10 23.04.2019 AND IMMEDIATELY PREFERRED AN APPEAL. TH US, ACCORDING TO ASSESSEE, SINCE THE ASSESSEE WAS UNAWARE OF THE EX PARTE DECISION OF T HIS TRIBUNAL AND THE IMPUGNED ORDER WAS PASSED SINCE ASSESSEE DID NOT GET A COPY OF NOTICE FIXING THE DATE OF HEARING FOR THE ENDS OF JUSTICE HE WANTS THE ORDER TO BE RECALLED. THE LD. DR OPPOSED RECALLING OF THE IMPUGNED ORDER. HE POINTED OUT THAT TEN YEARS HAVE ELAPSED AND MISC. APPLICATION CANNOT BE PREFERRED AGAINST THE IMPUGNED ORDER AS IT IS HIT B Y LIMITATION. 3. HAVING HEARD BOTH THE PARTIES, WE NOTE THAT THIS TRIBUNAL CANNOT PASS EX PARTE ORDER WITHOUT GOING INTO MERITS OF THE APPEAL AS HELD BY HONBLE DELHI HIGH COURT IN OM PRAKASH SANGWAN VS. ITO (2018) 94 TAXMANN.COM 394 ( DELHI) WHEREIN IT WAS HELD THAT RULE 24 OF THE INCOME TAX APPELLATE TRIBUNAL'S RULE S AND THE OTHER PROVISIONS OF BOTH THE INCOME TAX ACT AND THE RULES INDICATE THAT THE ITAT HAS TO DECIDE THE APPEALS OR MATTERS BEFORE IT ON MERITS AND ITS FAILURE TO DO SO IMPLIE S THAT IT EXCEEDED ITS JURISDICTION AND INSTEAD OF DECIDING ON THE MERITS, REJECTED THE APP EAL MERELY FOR NON-PROSECUTION. IT WAS HELD THAT SINCE RULE 24 DOES NOT STIPULATE ANY PERI OD OF LIMITATION WITHIN WHICH THE PARTY AGGRIEVED BY EX-PARTE ORDER CAN APPROACH THE TRIBUN AL, IT IS OPEN TO THE APPLICANT TO APPROACH THE TRIBUNAL WITH THE SUITABLE APPLICATION FOR RESTORATION OF THE APPEALS AND THE TIME PERIOD STIPULATED IN SECTION 254(2) OF THE ACT IS NOT APPLICABLE. FOLLOWING THIS DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF OM PRAKA SH SANGWAN, I HOLD THAT THIS APPLICATION FILED BY THE ASSESSEE FOR RECALL OF THE EX-PARTE ORDER AND RESTORATION OF ITS APPEAL IS NOT BARRED BY LIMITATION. 4. ON MERIT, WE HAVE CONSIDERED THE REASON GIVEN B Y THE ASSESSEE FOR HIS NON- APPEARANCE BEFORE THE TRIBUNAL ON 06.04.2009 WHEN T HE APPEAL WAS CALLED FOR HEARING. KEEPING IN VIEW THE SAID REASON, WE ARE SATISFIED T HAT THERE WAS SUFFICIENT CAUSE FOR THE NON-APPEARANCE OF THE ASSESSEE BEFORE THE TRIBUNAL ON 06.04.2009. WE ACCORDINGLY RECALL THE EX-PARTE ORDER PASSED BY THE TRIBUNAL DATED 06. 04.2009 KEEPING IN VIEW THE PROVISO TO RULE 24OF THE APPELLATE TRIBUNAL RULES, 1963 AND RE STORE THE APPEAL OF THE ASSESSEE TO ITS 3 MA NO. 44/KOL/2019 DR. SAUMABHA DASGUP TA, AY- 2009-10 ORIGINAL NUMBER. THE REGISTRY IS DIRECTED TO FIX T HE SAID APPEAL FOR HEARING OUT OF TURN ON 20.08.2019. 5. IN THE RESULT, MISC. APPLICATION OF ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 7TH AUGUST , 2019. SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 7TH AUGUST, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI SWARUP DUTTA, PROP. DUTTA CLEAR ING AGENCY, 136, SARAT CHATTERJEE ROAD, HOWRAH-700 014. 2 RESPONDENT ITO,WARD-48(4), KOLKATA. 3. 4. CIT(A)-XXXI, KOLKATA (SENT THROUGH E-MAIL) CIT- , KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR