Shri Ramesh Bhai V.Prajapati, Gandhinagar V. Dy.Commissioner of Income Tax,Gandhinagar Circle, Gandhinagar

MA 111/AHD/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0930 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 20-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Assessee Lawyers: S N DIVATIA
• Keywords: Reasonable cause; Set aside; FORM 26AS
• Section: 250; 254(2); 22; 63; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (CONDUCTED THROUGH VIRTUAL COURT) BEFORE: SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI AMARJIT SINGH, ACCOUNTANT MEM BER RAMESHBHAI V. PRAJAPATI, PLOT NO. 1300/2 SECTOR-2/B, GANDHINAGAR-382307 PAN: AHGPP3673D (APPELLANT) VS THE DCIT, GANDHINAGAR CIRCLE, GANDHINAGAR (RESPONDENT) REVENUE BY: SHRI L.P. JAIN, SR. D.R. ASSESSEE BY: SHRI S.N. DIVATIA, A.R . DATE OF HEARING : 22-02-2021 DATE OF PRONOUNCEMENT : 24-02-20 21 /ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- VIDE THIS MISCELLANEOUS APPLICATION, THE ASSESSEE SEEKS TO RECALL THE ORDER OF THE ITAT AHMEDABAD ON 20 TH FEB, 2018 WHEREBY THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED FOR WANT OF PROSECUTION . THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR WANT OF PROSECUTION AS O N THE DATE OF HEARING ON 14 TH FEB, 2018 NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY ADJOURNMENT APPLICATION WAS FILED ON BEHALF OF THE ASSESSEE. IN THE AFFIDAVIT FILED BY THE APPLICANT IT IS SUBMITTED THAT THE PROVISION OF SEC TION 254(4) OF THE ACT HAS M.A. NO. 111/AHD/2020 (IN ITA NO. 945/AHD/2016) ASSESSMENT YEAR 2012-13 M.A. NO. 111/AHD/2020 (I.T.A NO. 945/AHD/2016) A. Y. 2012-13 PAGE NO SHRI RAMESHBHAI V. PRAJAPATI VS. DY. CIT 2 PRESCRIBED THE LIMITATION FOR RECTIFICATION OF MIST AKE WITHIN A PERIOD OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER IS PASSED. THE ORDER WAS PASSED BY THE TRIBUNAL ON 20 TH FEB, 2018. SO, THE MISCELLANEOUS APPLICATION FOR RESTORATION WAS REQUIRED TO BE FILE D ON OR BEFORE THE EXPIRY OF SIX MONTHS FROM 20 TH FEB, 2018. IN THIS REGARD, IN THE AFFIDAVIT, THE ASSESSEE HAS SUBMITTED THAT HE HAS COME TO KNOW OF THIS ORDE R ONLY RECENTLY AS EXPLAINED IN THE APPLICATION FOR RESTORATION AND TH E APPLICANT HAS ALSO STATED IN DETAIL THE CIRCUMSTANCES IN WHICH THE APPLICATIO N COULD NOT BE MADE WITHIN SIX MONTHS. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS REPRODUCED AS UNDER:- 1. THE APPLICANT ABOVE NAMED SUBMITS THIS MISC. AP PLICATION U/S. 254(2) OF THE IT ACT 1961 (FOR SHORT 'THE ACT') FOR RESTORATION OF THE ORDER OF THE INCOME TA X APPELLATE TRIBUNAL, AHMEDABAD BENCH- C, AHMCDABAD PASSED ON 20-2-2018 WHEREBY THE APPEAL OF THE APPLI CANT HAS BEEN DISMISSED. 2. THE APPLICANT SUBMITS THAT BEING AGGRIEVED AND D ISSATISFIED WITH THE ORDER PASSED U/S 250 OF THE AC T ON 12- 2-2016 BY CIT (A)- GNR, IT HAD PREFERRED AN APPEAL BEFORE THE APPELLATE TRIBUNAL WHEREIN THE APPLICANT HAD CHALLENGED THE ADDITION OF RS. 10,46,032/- TOWARDS LOANS TAKEN FROM PARTIES AND ADDITIONS TOWARDS LTCG & STCG. 3. THE AFORESAID APPEAL HAS BEEN DISMISSED IN LIMIN E HOLDING THAT NOTICE WAS SENT FOR HEARING ON 14-2- 2018 BUT NO REPRESENTATION WAS MADE ON BEHALF OF APPELLA NT NOR ANY ADJOURNMENT WAS TAKEN, IT WAS CONSIDERED THAT APPELLANT IS NOT SERIOUS IN PERUSING THE APPEA L FILED. 4. THE APPLICANT SUBMITS WITH GREATEST RESPECT THAT THE SAID NOTICE OF HEARING WAS NOT RECEIVED BY HIM OR ANYONE HAD INFORMED HIM ABOUT SUCH HEARING. THEREFO RE THE APPLICANT COULD NEITHER MAKE ARRANGEMENT FOR APPEARANCE OF HIS CONSULTANT NOR SEEK ADJOURNMENT O N THAT DATE. UNDER THE ABOVE FACTS AND CIRCUMSTANCE S, THE APPLICANT SUBMITS THAT THERE WAS REASONABLE CAU SE FOR NON-SERVICE OF NOTICE AND CONSEQUENTIAL NON- APPEARANCE, THE IMPUGNED ORDER MAY BE RECALLED. 5. THE APPLICANT SUBMITS THAT THERE IS DELAY IN FIL ING THE PRESENT APPLICATION FOR RESTORATION FOR THE REASON THAT THE APPLICANT HAD STOPPED THE BUSINESS LONG AGO, HE IS NOT HAVING ANY ACTIVITY FOR LAST 4-5 YEARS AND THERE IS CONSISTENT PRESSURE FROM DEPARTMENT OF RECOVERY OF DEMAND BY TREATING HIM A DEFAULTER & ATTACHING HIS PROPERTY. DUE TO ALL SUCH FACTORS, HE HAD GONE INTO DEPRESSION AND HAD TO TAKE TREATMENT OF SAMVEDANA NEURO PSYCHIATRIC EEC CLINIC OF GANDHINAGAR FOR LAST TWO YEARS OR SO. . THE APPLICANT IS UNEDUCATED PERSON COMING FROM VILLAGE AND THE ENTIRE TAX MATTERS WERE HANDLED BY INTERMEDIARY WHO MADE MISREPRESENTATION AND DRAGGED HIM INTO LITIGATION. RECENTLY, THE APPL ICANT CAME INTO CONTACT OF ONE SH N. GAMADIA & CO C A THROUGH HIS WELL-WISHER WHEN THE TRO ISSUED SUMMONS UNDER RULE 63 OF SECOND SCHEDULE FOR ATTACHMENT & RECOVERY OF OUTSTANDING DEMAND OF ABOUT RS. 65.67 L ACS WHO MADE EFFORTS TO RECONSTRUCT RECORD FROM DEPARTMENT. THE APPLICANT APPEARED BEFORE TRO ON 22 -10-2019 & 05-11-2019 WHEN HE CAME TO KNOW ABOUT THE ORDER ALREADY PASSED BY TRIBUNAL. HENCE THE CA N. GAMADIA & CO TOOK OUT COPY FROM WEBSITE OF TRIBUNAL AND THE PRESENT APPLICATION FOR RESTORATIO N IS BEING FILED. THUS THERE IS SUFFICIENT CAUSE FO R CONDONING THE DELAY IN FILING THE PRESENT APPLICATI ON. THOUGH THE ORDER OF THE TRIBUNAL HAS BEEN PASSE D ON 20.02.2018, THIS APPLICATION IS BEING MADE NOW WHIC H IS WITHIN 6 MONTHS OF THE COMING TO KNOW OF THIS ORDER BY THE APPLICANT SO THAT IT MAY NOT BE DELAYED OR I N THE ALTERNATIVE THIS APPLICATION IS BEING MOVED U NDER RULE 24 OF THE ITAT RULES. 6. NEEDLESS TO SAY THIS ACT OF KINDNESS, THE APPLIC ANT AS IN DUTY BOUND SHALL FOREVER PRAY AND REMAIN GRATEFUL. M.A. NO. 111/AHD/2020 (I.T.A NO. 945/AHD/2016) A. Y. 2012-13 PAGE NO SHRI RAMESHBHAI V. PRAJAPATI VS. DY. CIT 3 THE ASSESSEE HAS FURTHER SUBMITTED THAT MISCELLANEO US APPLICATION HAS BEEN MADE FOR RECALLING THE ORDER PASSED ON 20 TH FEB, 2018 EX-PARTE WITHOUT CONSIDERING ITS MERIT AND THE SAID APPLICATION WAS MADE UNDER RULE 24 OF THE ITAT RULES, 1963. IT IS FURTHER SUBMITTED THAT THE ASSESSEE DESIRES TO FILE DECLARATION UNDER VIVAD SE VISHWAS SCHEME IN ORDER TO SETTLE THE MATTER UNDER PRESENT LAW. THE APPLICANT HAS ALSO STATED THAT RECENTLY CBDT HAS COME WITH CLARIFICATION BY WAY OF FAQ ON 4 TH DECEMBER, 2020 IN RESPECT OF VIVAD SE VISHWAS SCHEME AND CONSIDERING THE SAID FA Q NO. 59 WHICH REQUIRES THE ORDER OF ADMISSION PASSED BY HONBLE T RIBUNAL THE APPLICANT CANNOT FILE THE SAID DECLARATION UNDER VIVAD SE VIS HWAS SCHEME . IT IS ALSO SUBMITTED THAT THE VIVAD SE VISHWAS SCHEME IS IN OPERATION UPTO 28 TH FEB, 2021 AND THE DECLARATION CANNOT BE FILED TILL THE P AYER FOR RECALLING EX-PARTE ORDER IS NOT DISPOSED OFF. VIDE ITAT INTERIM ORDER DATED 12 TH FEB, 2021 CLARIFICATION WAS SOUGHT ON THE MERIT OF THE APPLIC ATION FILED BY THE ASSESSEE. THE RELEVANT PART OF THE INTERIM ORDER IS REPRODUCE D AS UNDER:- AGGRIEVED WITH ORDER OF THE ID.CIT(A) DATED 12.2.2 016, THE ASSESSEE HAS FILED AN APPEAL BEARING ITA N O.945/AHD/2016. THIS APPEAL WAS LISTED FOR HEARING ON 15.2.2018 AND IT WAS DISMISSED FOR WANT OF PROSECUTION VIDE ORDE R DATED 20.2.2018. THIS ORDER WAS DESPATCHED TO THE PARTIES BY THE REG ISTRY ON 15.3.2018. THE ASSESSEE FILED AN MA BEARIN G NO. 111/AHD/2020 FOR RECALL OF THIS ORDER. THIS APPLICA TION HAS BEEN FILED ON 20.3.2020. VIDE NOTICE DATED 12.11.2020 THE ASSESSEE WAS INTIMATED FOR HEARING OF THIS APPLICAT ION ON 18.12.2020. ON THE REQUEST OF THE LD. COUNSE L FOR THE ASSESSEE, THE HEARING WAS ADJOURNED ON 19.3.2021. THE ASSESSEE HA S FILED AN APPLICATION FOR EARLY DISPOSAL OF HIS AP PLICATION SO THAT HE CAN AVAIL BENEFIT OF VSV SCHEME. 2. WE HAVE HEARD THE LD. COUNSEL FOR THE ASSESSEE O N EARLY HEARING OF APPLICATION AND PERUSED THE RECO RD. NO DOUBT THIS APPLICATION HAS BEEN MOVED BY THE ASSESSEE UNDER RU LE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. IT READS AS UNDER: '24. WHERE, ON THE DAY FIXED FOR HEARING OR ON ANY OTHER DATE TO WHICH THE HEARING MAY BE ADJOURNED, T HE APPELLANT DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORISED REPRESENTATIVE WHEN THE APPEAL IS CALLED ON FOR HEARING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE RESPONDENT: PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVIDED ABOVE AND THE APPELLANT APPEARS AFTERWA RDS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIEN T CAUSE FOR HIS NON-APPEARANCE, WHEN THE APPEAL WAS CALLED ON FOR HEARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTI NG ASIDE THE EX PARTE ORDER AND RESTORING THE APPEA L. 3. A PERUSAL OF THE ABOVE RULE WOULD INDICATE THAT IF AN APPEAL HAS BEEN DISPOSED OF EX PARTE, AND APP ELLANT APPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WA S A SUFFICIENT CAUSE FOR HIS NON-APPEARANCE, HIS AP PEAL IS TO BE REINSTATED TO THE ORIGINAL NUMBER. THE ASSESSEE HAS FILED THE PRESENT MA AFTER 579 DAYS OF THE PASSING OF ORIGINAL ORDER, WHICH WAS DULY SERVED UPON HIM. AT THE TIME OF HEAR ING ON THE EARLIER OCCASION, WE HAVE ENQUIRED FROM THE LD. COUNSEL FOR THE ASSESSEE TO DEMONSTRATE WHAT STEPS HAS BEEN TAK EN BY THE ASSESSEE FOR GETTING RECALL OF EX-PARTE J UDGMENTS DURING THE LAST MORE THAN TWO YEARS. IT IS PERTINENT TO OBSERV E THAT THE ASSESSEE WAS AWARE ABOUT THE DISPOSAL OF HIS APPEAL FOR WANT OF PROSECUTION WHEN TRO HAS ISSUED SUMMONS FOR ATTACHM ENT AND RECOVERY OF OUTSTANDING DEMAND. HE HIMSELF HAS MENTIONED THIS FACT IN PARA-5 OF THE APPLICATION THAT HE APPE ARED BEFORE THE TRO ON 22.10.2019. EVEN THEREAFTER, THE ASSESSEE DID NOT TAKE ANY STEP FOR GETTING THE TRIBUNAL'S ORDER RECA LLED. THIS APPLICATION HAS BEEN FILED ONLY AFTER IN TRODUCTION OF SCHEME FOR RESOLUTION OF TAX DISPUTE BY THE GOVERNMENT, AND TH EREAFTER THE ASSESSEE FILED AN APPLICATION FOR RECA LL OF THE TRIBUNAL'S ORDER. IN THIS MA, THE ASSESSEE HAS MOVED THE PRESE NT APPLICATION FUR HEARING THE APPEAL OUT-OF-TURN. AS WE HAVE LISTED THE MA ON 18.12.2020 AND PARTLY HEARD THIS APPLICATION, BUT NECESSARY DETAILS AS DISCUSSED IN HEARING WERE NOT SUBMITTED; THOUGH NOTHING HAS BEEN RECORDED IN THE INTERIM ORD ER ABOUT THIS FACT; BUT SINCE WE WERE PARTY TO THE HEARING, AND AWARE M.A. NO. 111/AHD/2020 (I.T.A NO. 945/AHD/2016) A. Y. 2012-13 PAGE NO SHRI RAMESHBHAI V. PRAJAPATI VS. DY. CIT 4 ABOUT THE DISCUSSION UNDERTAKEN BY US. THERE IS NO CHANGE IN THE CIRCUMSTANCES BETWEEN 18 TH DECEMBER TILL TODAY EXCEPT EXTENSION OF LIMITATION OF THE SCHEME FROM DECEMBER TO JAN, AND THEREAFTER TO FEBRUARY. THEREFORE, THE ASSESSEE HAS BEEN MAKING REPEATED REQUESTS FOR EARLY DISPOSAL OF HIS MA. 4. ON DUE CONSIDERATION OF THE ABOVE FACTS, AND IN THE INTEREST OF JUSTICE, WE AGAIN GRANT ONE MORE O PPORTUNITY TO THE ASSESSEE FOR OUT-OF-TURN HEARING. LET THE MAIN MA B E LISTED FOR HEARING ON 22 ND FEBRUARY, 2021. EARLY HEARING APPLICATION OF THE ASSESSEE IS DISPOSED OF ACCORDINGLY. 5. COPY OF THIS ORDER BE SUPPLIED TO BOTH THE PARTI ES. IN THIS REGARD, THE EXPLANATION OF THE ASSESSEE FIL ED ON 19 TH FEB, 2021 IS REPRODUCED AS UNDER:- RECENTLY THE APPLICANT'S AR HAS BEEN SERVED ON 17- 2-2021 WITH THE INTERIM ORDER PASSED ON 12-2-2021 W HEREIN THE FOLLOWING OBSERVATIONS HAVE BEEN MADE IN SUBSTANCE: I. WHAT STEPS HAD BEEN TAKEN FOR GETTING RECAL L OF THE EX- PARTE ORDER DURING THE LAST TWO YEARS? II. THIS APPLICATION HAS BEEN MADE ONLY AFTER INTRODUCTION OF SCHEME FOR RESOLUTION OF TAX DISPUTES III. THERE IS NO CHANGE IN THE CIRCUMSTANCES BE TWEEN 18-12 TILL 12-2-2021. 3. THE APPLICANT SUBMITS WITH UTMOST RESPECT S THAT THE ABOVE SAID OBSERVATIONS ARE NOT JUSTIFIE D BOTH ON FACTS AND IN LAW AS UNDER: I. FIRSTLY, THE APPLICATION HAS BEEN MADE UNDE R PROVISO TO RULE 24 OF ITAT RULES' WHERE NO TIME L IMIT HAS BEEN PRESCRIBED FOR FILING THIS APPLICATION. THE ONLY RE QUIREMENT UNDER THIS PROVISO IS TO DEMONSTRATE BY T HE APPLICANT -APPELLANT THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON-APPEARA NCE WHEN THE APPEAL WAS CALLED OUT FOR HEARING. THE APPLICANT HAS STATED IN HIS APPLICATION FILED ON 20-3-2020 THE CI RCUMSTANCES IN WHICH THERE COULD NO! BE APPEARANCE ON THE DATE OF HEARING WHICH ARE NOT REPEATED HERE FOR SAKE OF BRE VITY BUT THE SAME SHOULD BE REFERRED TO. THE APPLIC ANT DESIRES TO BRING ON THE SAID CIRCUMSTANCES IN DETAILS WITH EVIDENCE WHILE DEALING WITH THE FIRST OBSERVATION MADE IN IT S INTERIM ORDER DL 12- 2-2021 BY HON'BLE TRIBUNAL ELSEWHERE IN THIS REPLY. II. SECONDLY, AS REGARDS THE STEPS HAD BEEN TA KEN FOR GETTING RECALL OF THE EX-PARTE ORDER DURING THE LAST TWO YEARS THE APPLICANT WANTS TO CLARIFY THAT THE EX-PARTE ORDER WAS DOWNLOADED BY HIS NEWLY APPOINTED TAX CONSULTAN T- CA N. GAMADIA & CO. THE REASON FOR PROMPTING HIM TO DOWN LOAD IT FROM WEBSITE OF TRIBUNAL WERE THAT A. THE APPLICANT RECEIVED PHONE CALL F ROM AO IN CONNECTION WITH NON-PAYMENT OF TAXES FOR THIS YEAR SOMEWHERE IN LAST WEEK OF JUNE 2019 (THIS IS APPAR ENT FROM LETTER ADDRESSED TO A.O. ON 1-7-2019). THE APPLICANT WAS TOTALLY IGNORANT ABOUT THE STATUS OF THE PROCEEDINGS/APPEAL. THE AO ORALLY INFORMED HIM THAT HIS APPEAL WAS DISPOSED OF AGAINST HIM SINCE NO ONE APPEARED. SINCE THE PREVIOUS TAX CONSULTANT HAD NO T ATTENDED TO THE TAX MATTERS SATISFACTORILY, HE APPR OACHED CA N. GAMADIA & CO WHO FILED ON 1-7-2019 A L ETTER WHEREIN HE POINTED OUT AT PARA-3 THAT HE WOULD LIKE TO INSPECT AND OBTAIN CERTIFIED COPY OF DOCUMENTS/INFORMATION AVAILABLE ON RECORD OF AO AND HE GAVE ILLUSTRATIVE LIST' OF SUCH DOCUMENTS. -HE WAS SHOWN THE PENALTY ORDER FOR THIS YEAR BY AO SO THAT HE MADE APPLICATION FOR RECTIFICATION ON SAME DATE . B. THERE AFTER THE APPLICANT RECEIVED FROM TRO G'NR A NOTICE DT 11-9-2019 TO TREAT HIM AS DEFAULTE R IN RESPECT OF OUTSTANDING DEMAND FOR THIS YEAR. C. AFTER THIS NOTICE TRO ISSUED IMMEDIATELY ON 9-10-2019 A RECOVERY NOTICE AND FOLLOWED BY A SUMMO NS DT. 18-10-2019. THE APPLICANT SUBMITTED A DETAILED EXPL ANATION VIDE LETTER DT 22-10-2019 TO TRO THE CIRCUM STANCES LEADING TO NON-PAYMENT OF SO-CULLED DUES WHEREIN TH E APPLICANT HAD STATED THAT HE WAS IN PROCESS OF RE VIVING THE APPEAL BY TRIBUNAL (PARA-3). THE APPLICANT HAS POINTED OUT THE FINANCIAL STATUS AND VIRTUALLY NO B USINESS ACTIVITY IN LAST 4-5 YEARS ETC. D. AS IF THE AFORESAID DIFFICULTIES WERE NOT SU FFICIENT, THE APPLICANT RECEIVED A SHOW CAUSE DT 5- 12-2019 FROM PR CIT GNR TO LAUNCH PROSECUTION U/S 276C (2) OF TH E ACT FOR ALLEGED WILLFULLY AVOIDANCE TO PAY TAXES. THE APPLICANT FURNISHED DETAILED REPLY D! 18-12-2019 NA RRATING THE AFORESAID CIRCUMSTANCES AGAIN. E. THE APPLICANT RECEIVED ONE MORE NOTICE DT 20 -1-2020 FROM AO IN CONNECTION WITH THE RECOVERY OF OUTSTANDING DEMANDS WHICH WAS RESPONDED VIDE REPLY DT 27-1-2021 AND ULTIMATELY HIS TO TREAT HIM AS DEF AULTER C-404 BALMUKUND HEIGHTS KUDASAN GNR WAS ATTACHED ON 27-2-2020 BY TRO. THE APPLICANT HAS PLACED ON RECORD HIS AFFIDAVIT DT. 11-6-2020 IN THIS REGARDS WHICH IS SELF-EXPLANATORY. IN VIEW OF AFORESAID DEVELOPMENTS FOR WHICH HE CANN OT BE BLAMED WHOLLY FOR DELAY IN FILING THE PRESENT APPLICATION WITH TRIBUNAL. THE APPLICANT WAS UNDER GREAT MENTAL TENSION, DEPRESSION AND ILL HEALTH (AS PER MEDICAL REPORTS SUBMITTED EARLIER). HE WAS NOT HAVING REQUIRED PAPE RS/DOCUMENTS/GUIDANCE/ADVICE TO SET RIGHT THE AFFAI RS. THE APPLICANT WAS PROVIDE SOME OF THE PAPERS/DOCUMENTS OF LATE AS EVIDENT FROM APPEAL FILED AGAINST PENALTY ORDER 21 -10-2019. THE APPLICANT HAS POINTED OUT IN THE AFORESAID CORRESPO NDENCE THAT THERE WAS ONE INTERMEDIARY PERSON WHO C OORDINATED WITH THE PREVIOUS TAX CONSULTANT WHO HAD REMAINED ABSENT /MISREPRESENTED IN THE TAX MATTERS AND THE APPLICAN T BEING NOT WELL EDUCATED AND CONVERSANT WITH LAW, HE RELIED UPON TH E SAID PERSONS WHICH CAUSED THIS NON-APPEARANCE ETC . THE APPLICANT HAD NO DISHONEST OR MALFIDE INTENTIONS TO AVOID PAY ING LEGITIMATE DUES OF THE DEPARTMENT AS EVIDENT FR OM THE INSTALMENTS PAID SO FAR AS PER FORM 26AS. THEREFORE SAID SEQUEN CE OF EVENTS CLEARLY DEMONSTRATE THAT THE APPLICANT WAS NEITHER DORMANT NOR HAD ACCEPTED THE ORDER PASSED BY TRIBUN AL. HE WAS VERY MUCH AGGRIEVED BY SUCH EX-PANE ORDE R AND ALL THE M.A. NO. 111/AHD/2020 (I.T.A NO. 945/AHD/2016) A. Y. 2012-13 PAGE NO SHRI RAMESHBHAI V. PRAJAPATI VS. DY. CIT 5 INTENTIONS TO TAKE APPROPRIATE STEPS BUT HE HAD NO SUFFICIENT PAPERS WITH HIM TO PROCEED WITH FILING M ISC. APPLICATION FOR RESTORATION. IN SHORT THE TOTALITY OF CIRCUMSTANCES PROVE THAT T HERE WAS SUFFICIENT CAUSE FOR DELAY IN MOVING THE M ISC. APPLICATION. III. THE APPLICANT SUBMITS WITH UTMOST RESPEC TS THAT THE MA HAS NOT BEEN FILED JUST TO TAKE BENE FIT UNDER VIVAD SE VISHWAS SCHEME BECAUSE THIS SCHEME WAS INTRODUCE BY HON'BLE FINANCE MINISTER IN LOK SABHA ON 5-2-2020 VIDE DIRECT TAX VSV BILL 2020. ON THE OTHER HAND, THE APPLICANT WAS POINTING OUT FOR NECESSARY ACTION TO RECALL TH E ORDER OF TRIBUNAL IN FIRST REPLY DT 1-7-2019 AND SUBSEQUENT CORRESPON DENCE. THUS THE VSV HAD VSV HAD NOT PROMPTED HIM TO MAKE THIS APPLICATION RATHER THE ATTACHMENT OF IMMOVABLE PROP ERLY AND LAUNCHING OF PROSECUTION PROCEEDINGS WERE ALL THE MORE REASONS FOR MAKING THIS APPLICATION. EVEN IF SUCH S CHEME WERE NOT IN OPERATION, IT WAS IN THE INTEREST OF THE APPLICANT TO GET THIS ORDER RESTORED AND HEARD ON MERITS- IT WILL BE APPRECIATED THAT IN CASE THIS APPLICATION IS DISMISSED ON THIS GROUND, IT WILL FRUSTRATE THE ENTIRE OBJECTIVE TO LAUNCH THIS SCHEME AS STATED IN CEDT CIRCULARS NO. 9/ 22-4-2020 AND NO. 21/4-12- 2020. THEREFORE TAKING INTO CONSIDERATION THE SAME, A LENIENT VIEW OF THE MATTER IS REQUESTED. THE APP LICANT RELIES UPON THE DECISION IN CASE OF M/S KALRA PAPERS PVT LTD V ITO ( WC NO.9467/2020 DT 11-12-2020 ) WHEREIN IT WAS HE LD THAT 'WE ARE ALSO PERSUADED TO ALLOW THE PETITION, IN VIEW OF TH E UNDERTAKING GIVEN BY THE PETITIONER THAT IT WOULD APPLY UNDER THE VIVAD SE VISHWAS' SCHEME IN THE EVENT THE APPEAL IS RESTO RED TO ITS ORIGINAL NUMBER. THE PETITIONER'S UNDERT AKING IS TAKEN ON RECORD AND IT SHALL BE HELD BOUND BY THE SAME. THE APPLICANT SUBMITS THAT SIMILAR VIEW IS TAKEN BY THIS TRIBUNAL IN CASE OF DILIP M. SHAH V ITO (MA NO. 55- 56/AHD/2019 DT 1-12-2020) IV LASTLY, THE APPLICANT SUBMITS THAT WHEN THE HON' BLE TRIBUNAL HAS PASSED EX-PARTE ORDER ON THE GROU ND OF NON- PROSECUTION INSTEAD OF DECIDING THE MATTER ON MERIT S, RULE 24 MAKES IT ABUNDANTLY CLEAR THAT THE TRIBU NAL CANNOT DISMISS THE APPEAL WITHOUT ADVERTING TO THE MERITS. IT IS HELD IN CASE OF DOLPHIN METAL (INDIA) LTD. V. ITO W ARD- 1(4) IN SPECIAL CIVIL APPLICATION NO 7163 OF 2019 DL 16-2-2021 FOLL OWING THE DECISION IN CASE OF SANKET ESTATE & FINAN CE PVT. LTD V CIT { TAX APPEAL NO. 133/2012 (32 LAXMANN.COM 342) THAT R ELIANCE ON MULTIPLAN (SUPRA) WAS ERRONEOUS. THEREFO RE ON THIS GROUND ALSO THE SAID ORDER DESERVES TO BE RECALLED. THE APPLICANT HAS ALSO POINTED OUT IN MA THAT SIMI LAR VIEW TAKEN BY HON'BLE DELHI HIGH COURT IN CASE OF OM PRAKASH SANG WAN (SUPRA) AND AARTI F.NG & CONSTRUCTION CO. (SUPR A). V. IN ANY VIEW OF THE MATTER THE APPLICANT SU BMITS THAT HE IS NOT ABLE TO FIND OUT FROM HIS RECO RDS, THE ACTUAL SERVICE OF THE ORDER PASSED BY TRIBUNAL AND ITS LAST NOTICE OF HEARING ETC. THEREFORE THE SERVICE OF DECISION ON 15-3-2018 OR OTHER DATE MAY BE TAKEN AFTER APPROPRIATE VERIFICATION OF RECO RDS. VI. IN VIEW OF ABOVE, THE APPLICANT HUMBLY PRAYS THAT THIS HON'BLE TRIBUNAL MAY B E PLEASED A. TO CONDONE THE DELAY IN PREFERRING THE M ISC. APPLICATION OF THE APPELLANT AGAINST THE IMPUGNED ORDER PASSE D ON 20-2-2018 BY THE TRIBUNAL. B. TO QUASH AND SET ASIDE THE OR DER DT. 20 -2-2018 PASSED BY TRIBUNAL AND FURTHER TO RESTORE T HE APPEAL TO THE FILE OF TRIBUNAL FOR FRESH HEARING & DISPOSAL. IN SUPPORT OF HIS CONTENTION, THE ASSESSEE HAS ALSO FILED COPIES LETTER DATED 1 ST JULY, 2019 ISSUED TO THE ASSESSING OFFICER REGARDIN G INSPECTION OF RECORD FOR ASSESSMENT YEAR 2012-13, COPIES OF LETTER DATED 3 RD JULY, 2019 FOR RECTIFICATION OF APPLICATION U/S. 154 AND COPY OF N OTICE OF DEMAND OF THE TRO DATED 11 TH SEP, 2019 AND COPIES OF OTHER VARIOUS CORRESPONDENC E MADE WITH THE ASSESSING OFFICER PERTAINING TO RECOVERY O F DEMAND ETC. THE ASSESSEE HAS ALSO FILED A COPY OF JUDICIAL PRONOUNC EMENT OF JURISDICTIONAL HIGH COURT IN THE CASE OF DOLPHIN METAL (INDIA) LTD . THROUGH DIPAK BHAGAT VS. ITO WARD 1(4) DATED 16.02.2021 WHEREIN THE HON BLE HIGH COURT OF GUJARAT ADJUDICATED THE ISSUE PERTAINING TO THE APP EAL FOR NON-PROSECUTION AS UNDER:- 7 . IN VIEW OF THE AFORESAID DECISION, THE ORDER P ASSED BY THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD 'B' BENCH, AHMEDABAD, DATED 31.07.2018 DE CLINING TO CONDONE THE DELAY AND RESTORE THE APPEAL TO ITS ORIGINAL FILE IS HEREBY QUASHED A ND SET ASIDE. THE ORDER PASSED BY THE APPELLATE M.A. NO. 111/AHD/2020 (I.T.A NO. 945/AHD/2016) A. Y. 2012-13 PAGE NO SHRI RAMESHBHAI V. PRAJAPATI VS. DY. CIT 6 TRIBUNAL DATED 12.12.2014 DISMISSING THE APPEAL FOR NON-PROSECUTION IS ALSO QUASHED AND SET ASIDE. THE ORIGINAL IT APPEAL NO.1263/AHD/2011 FOR A.Y. 2006-07 IS ORDERED TO BE RESTORED TO ITS ORIGINAL FILE. THE APPELLATE TRIBUNAL SHALL FIX THE HEARING OF THIS APPEAL AND DISPOSE OF THE SAME IN ACCORDANCE WITH LAW. WE EXPECT THE WRIT APPLICANT T HIS TIME TO FULLY COOPERATE IN THE EXPEDITIOUS DISPOSAL OF THE APPEAL. THE LD. COUNSEL HAS ALSO PLACED RELIANCE ON THE DEC ISION OF ITAT IN THE CASE OF SHRI DILIPBHAI MANGALDAS SHAH VS. ITO VIDE M.A. NOS. 55 & 56/AHD/2019 IN 2131 & 2132/AHD/2015 DATED 01.12.202 0 2. HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. THE APPEAL OF THE ASSESSEE WAS DISMISSED VIDE ITAT ORDER DATED 20 TH FEB, 2018 AS NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE DATE OF H EARING. THE ASSESSEE HAS EXPLAINED THE REASON FOR NOT FILING THE MISCELLANEO US APPLICATION WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED AS ELABORATED SUPRA SUPPORTED BY AN AFFIDAVIT AND COPI ES OF OTHER DOCUMENTS/DETAILS. THE ASSESSEE HAS ALSO POINTED O UT THAT PREVIOUS TAX CONSULTANT HAS NOT ATTENDED HIS TAX MATTER SATISFAC TORILY AND NEW TAX CONSULTANT HAS OBTAINED VARIOUS DOCUMENTS, THESE CI RCUMSTANCES AND HIS ILL HEALTH CAUSED DELAY IN FILING THIS APPEAL AGAINST E X-PARTE ORDER WHICH WAS PASSED ON ACCOUNT OF NON-PROSECUTION. AFTER TAKIN G INTO CONSIDERATION THE FACTS NARRATED BY THE ASSESSEE SUPPORTED BY AN AFFI DAVIT/DOCUMENTS IT APPEARS THAT THERE WAS REASONABLE CAUSE FOR NON-APPEARANCE AND DELAY IN FILING THE MISCELLANEOUS APPLICATION AGAINST EX-PARTE ORDER PA SSED ON ACCOUNT OF NON- PROSECUTION. THEREFORE, KEEPING IN VIEW OF RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL, 1963) AND AFTER TAKING INTO CO NSIDERATION THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT CITED IN THE CASE OF DOLPHIN METAL (INDIA) LTD. VS. ITO SUPRA, WE CONDONE THE DELAY IN FILING THE MISCELLANEOUS APPLICATION. CONSIDERING THE ABOVE FACTS AND FINDI NGS, THE MISCELLANEOUS M.A. NO. 111/AHD/2020 (I.T.A NO. 945/AHD/2016) A. Y. 2012-13 PAGE NO SHRI RAMESHBHAI V. PRAJAPATI VS. DY. CIT 7 APPLICATION IS ALLOWED AND THE REGISTRY IS DIRECTED TO LIST THIS CASE FOR HEARING ON 30 TH MARCH, 2021. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24-02-2021 SD/- SD/- (RAJPAL YADAV) (AMARJIT SINGH) VICE PRESIDENT A CCOUNTANT MEMBER AHMEDABAD : DATED 24/02/2021 / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,