S.K. Enterprise, Ahmedabad V. The ACIT, Cent. Circle 1(3), Ahmedabad

MA 11/AHD/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4603 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 3 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 03-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S.S. SHUKLA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “A” BENCH Before: Ms. Annapurna Gupta, Accountant Member And Ms. Madhumita Roy, Judicial Member S.K. Enterprises 1, Jaideep Bunglows, Gala Gymkhana Road, Bopal, Ahmedabad PAN: ABJFS2340H (Appellant) Vs The ACIT, Central Circle-1(3), Ahmedabad (Respondent) Appellant by : Ms. Amrin Pathan, A.R. Respondent by : Shri S.S. Shukla, Sr.D.R. Date of hearing : 22-04-2022 Date of pronouncement : 27-04-2022 आदेश/ORDER PER : ANNAPURNA GUPTA, ACCOUNTANT MEMBER:- The captioned Miscellaneous Applications have been filed at the instance of the same assessee seeking recall of combined ex parte order dated 02.02.2017 passed by the Tribunal under s.254(1) of the Act whereby both appeals of the assessee were dismissed in limine for want of prosecution of its appeal filed by assessee. 2. When the matter was called for hearing, the learned AR for the assessee vide its miscellaneous application contended as under: M.A Nos. 11 & 12/Ahd/2018 (in IT(SSA Nos. 268 & 267/Ahd/2013) Assessment Years 2009-10 & 2008-09 M..A Nos. 11 & 12/Ahd/2018 A.Y. 2009-10 & 2008-09 Page No S.K. Enterpirses vs. ITO 2 “1. The Applicant herein was Appellant in ITA No. 267 & 268/AHD/2013 filed for AY 2008-09-ttnd AY 2009-10 against the order of the Commissioner of Income Tax (Appeals)-1, Ahmedabad [the "C1T(A)"]. 2. The above referred matter came before the "A Bench" comprising of Hon'ble Shri S. S. Godara, JM and Hon'ble Shri Manish Borad, AM. Since the Appellant did not remain present on the date of hearing the matter was dismissed. The conclusion arrived at by the Hon'ble Tribunal in the appellate order dated 02-02-2017 that: "none appeared on behalf of the Assessee nor an adjournment application was filed on behalf of the Assessee, which indicates that the assessee is not interested in prosecuting the appeal, therefore following the decision of ITAT Delhi Bench in the case of CIT Vs. Multiplan India (Pvt.) Ltd., 38 ITD 320 (Del.), we dismiss the appeal of the appellant in limine. " 3. Since non-appearance by the Applicant was beyond his control the Applicant has made the present application with a request to recall Hon'ble Tribunal's order dated 02-02-2017 for the reasons stated below. 4. The Hon'ble Bench has observed that on the date of hearing (11-11-2016 & 02- 02-2017) none remained present and therefore the matter was dismissed in limine. We most respectfully submit that no notice of hearing, fixing the hearing on 11-11-2016 & 02-02-2017, was received by the Applicant. The Applicant was not aware that the matter was fixed for hearing on 02-02-2017. It was only on the receipt of show cause notice u/s 276C(1) of the Income Tax Act, 1961 from Pr. CIT-3, Ahmedabad dated 07-11-2017, where Hon'ble Pr. CIT has stated that appeal filed by the appellant against the order of CIT(A) for penalty u/s 271(l)(c) has been confirmed by the ITAT, whereby Applicant became aware that the Hon'ble ITAT has passed the ex parte order for the above referred appeal. We most respectfully submit that for no fault of the Applicant the appeal of the Applicant has been dismissed. In light of above facts and explanations, the Applicant requests your kind office to recall the aforesaid order and give an opportunity of being heard. 5. Without prejudice to the above, it is respectfully submitted that in any case of non-attendance of a party or its authorized representative cannot be used as a M..A Nos. 11 & 12/Ahd/2018 A.Y. 2009-10 & 2008-09 Page No S.K. Enterpirses vs. ITO 3 ground for inflicting the punishment to the Appellant. It is submitted that the matter may be decided on the merits and the appeal be not dismissed for default as non-appearance of the Appellant and its representative was for very just and reasonable grounds as pointed out above and there was no intentional failure on the part of the Appellant to remain absent from the hearing. In view thereof, it may be, in fitness of things that the order may be recalled and fresh order may be passed after giving a reasonable opportunity of being heard to the applicant. 6. The fees required to be paid has been paid and Challan evidencing the payment of Rs.50/- for the fees is enclosed herewith for your record. 7. In view of the above submission your applicant most respectfully prays as under: a. The order of the Hon'ble Income Tax Appellate Tribunal dated 02-02- 2017 may please be recalled and the appeal be decided afresh after giving an opportunity of being heard in the matter. b. Such other order as the Hon'ble Tribunal may deem fit in the facts and circumstances of the present application. 8. For this act of kindness the applicant shall as in duly bound, shall for ever pray and remain grateful. 3. The partner of the assessee firm further filed an affidavit, stating on oath that the notice of hearing could not be received since the assessee had changed its address from that stated in the form No.36, of the appeal filed to the ITAT. The details of the change in address were mentioned in the affidavit and also a revised form No.36 stating the changed address of the assessee, filed before us. 4. After considering the circumstances existing in the case and the submissions of the assessee, we are satisfied that there was a reasonable cause for failure on the part of the assessee to appear before the ITAT on the date of hearing on account of non receipt of notice due to change in its M..A Nos. 11 & 12/Ahd/2018 A.Y. 2009-10 & 2008-09 Page No S.K. Enterpirses vs. ITO 4 address.. Accordingly, we recall the order of the ITAT Ahmedabad Bench 'A' passed in ITA Nos. 267/Ahd/2013 & 268/Ahd/2013 dated 02/02/2017 (supra) and direct the Registry to fix both the appeals for fresh hearing on 01-06-2022 in consultation with both the sides present. Therefore, formal notice of hearing is dispensed with the consent of both parties. 4. In the result, miscellaneous applications filed by both the assessees are allowed. Order pronounced in the open court on 27-04-2022 Sd/- Sd/- (MADHUMITA ROY) (ANNAPURNA GUPTA) JUDICIAL MEMBER True Copy ACCOUNTANT MEMBER Ahmedabad: Dated 27 /04/2022 आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपीलȣय अͬधकरण, अहमदाबाद