Shri Dashrathbhai Kanjibhai Chaudhary, V. The Income tax Officer,Ward-1, Palanpur

MA 112/AHD/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6800 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 27-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S SOORYAWANSHI
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'A' BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A N PAHUJA, ACCOUNTANT MEMBER M A NO.112/AHD/2011 [IN ITA NO.1296/AHD/2009] (ASSESSMENT YEAR:-2006-07) SHRI DASHRATHBHAI KANJIBHAI CHAUDHARY, OM NAMAH SHIVAY TRANSPORT CO., F/3, JAY LAXMI TOWER, OPPOSITE LACASA INN HOTEL, NEAR SBI COMMERCIAL, GANESH CHOKADI, ANAND V/S INCOME-TAX OFFICER, WAR-1, PALANPUR. PAN: ADQPC 3197 D [APPLICANT] [ORIGINAL APPELLANT] [RESPONDENT] [ORIGINAL RESPONDENT] APPLICANT BY :- SHRI SAKAR SHARMA, AR RESPONDENT BY:- SHRI G S SOORYAWANSHI, DR DATE OF HEARING:- 12-08-2011 DATE OF PRONOUNCEMENT:- 12-08-2011 O R D E R A N PAHUJA: THIS MISC. APPLICATION[MA] HAS BEEN FILED ON 27.6 .2011 AGAINST AN ORDER DATED 1-4-2011 OF THE TRIBUNAL IN ITA NO. 1296/AHD/2009 FOR THE ASSESSMENT YEAR 2006-07, DIS MISSING THE APPEAL OF THE ASSESSEE, RELYING UPON THE DECISION O F DELHI BENCH OF THE TRIBUNAL IN THE CASE OF MULTIPLAN INDIA (P) LTD . VS CIT 38 ITD 320 (DEL). 2. IN THEIR MISCELLANEOUS APPLICATION, THE ASSESSE E SUBMITTED THAT THE APPELLANT AT THE TIME OF FILING OF APPEAL HAD SHIFTED TO ANAND DUE TO BUSINESS COMPULSIONS. HOWEVER, SINCE MATTER FOR THE YEAR UNDER CONSIDERATION WAS BEING LOOKED AFTER BY HIS TAX CONSULTANT SHRI PARTHIBHAI S CHAUDHARY AT PALANPUR, IN ORDER TO AVOID FURTHER DE LAY IN COMPLIANCE, APPELLANT WAS ADVISED TO FILE APPEAL WITH ADDRESS AT PALANPUR FRO M WHERE THE APPELLANT WAS EARLIER CARRYING ON HIS BUSINESS WITH AN UNDERSTANDING TH AT THE TAX CONSULTANT 2 MA NO.112/AHD/2011 WOULD COLLECT REQUIRED NOTICES/ COMMUNICATIONS FROM THE SAID ADDRESS. THE PROPERTY OWNER (A CLOSE RELATIVE OF APPELLANT) WAS ALSO INFORMED ACCORDINGLY. THOUGH THE FIRST NOTICE OF HEARING WAS SERVED ON THE S AID ADDRESS AND THE CHARTERED ACCOUNTANT AT AHMEDABAD REPRESENTED THE APP ELLANT ON THE DATE OF HEARING ON 17/06/2009, THE SUBSEQUENT NOTICE OF HEARI NG, HOWEVER, COULD NOT BE SERVED BY POSTAL AUTHORITIES AT THE PALANPUR ADDRESS AS PR OPERTY OWNER WAS NOT PRESENT AT THE TIME OF SERVICE OF NOTICE AND EMPLOYEE O F SHOP APPEARS TO HAVE REFUSED TO ACCEPT THE NOTICE DUE TO IGNORANCE. IN THESE CIRCUMSTANCES, THE APPEAL DECIDED EX-PARTE MAY BE RECALLED IN THE INTEREST OF J USTICE, THE APPLICANT PLEADED. 3. THE LD. AR ON BEHALF OF THE ASSESSEE MERELY REITE RATED WHAT IS MENTIONED IN THE MA WHILE THE LD. DR DID NOT OPPOSE THE MA. 4. AFTER HEARING THE PARTIES AND CONSIDERING THE FACT S OF THE CASE, WE ARE OF THE OPINION THAT THE DISPOSAL OF THESE APPEALS WAS IN VIOLATION OF THE PRINCIPLE OF ' AUDI ALTERAM PARTEM '. THE PRAYER IN SUCH A SITUATION FOR REHEARING THESE APPEALS IS NOT A PRAYER TO REVIEW ITS EARLIER DECISION, RATHER IT IS TO SET ASIDE AN EX PARTE ORDER AND FOR AFFORDING AN OPPORTUNITY OF BEING HEA RD. THIS POWER IS INHERENT IN THE TRIBUNAL. POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF R. 24 OF THE ITAT RULES, 1963, AND THAT TOO ONLY IN CASES WHERE THE ASSESSEE SHOWS THAT IT HAD A REASONABLE CAUSE FOR BEING ABSENT AT A TIME WHEN THE A PPEAL WAS TAKEN UP AND WAS DECIDED EX PARTE. IN THIS CONNECTION, HONBLE GAU HATI HIGH COURT IN THE CASE OF RAJENDRA PRASAD BORAH VS ITAT AND OTHERS,302 IT R 243, RELYING UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CI T VS S.CHENNIAPPA MUDALIAR,74 ITR 41 AND THEIR OWN DECISION IN THE ASSAM TRIBUNE VS. CIT,285 ITR 452, HELD THAT APART FROM THE FACT THAT, SECTION 254(EA RLIER SECTION 33)OF THE ACT MAKES IT INCUMBENT ON THE LEARNED TRIBUNAL TO DISPOSE OF THE AP PEALS ON MERITS AS HAS BEEN ENUNCIATED BY THE APEX COURT IN CIT VS S.CHENNIAP PA MUDALIAR,74 ITR 41, RULE 24 AS IT STANDS, PER SE DOES NOT EMPOWER THE LEARNE D TRIBUNAL TO DISMISS AN APPEAL FOR DEFAULT IN THE ABSENCE OF THE APPELLANT. THE LEARNED TRIBUNALS RELIANCE ON THE DECISION OF THE INCOME-TAX APPELLATE TRIBUNAL, D ELHI RENDERED IN CIT VS.MULTIPLAN INDIA(P) LTD.,38 ITD 320(DELHI) , IS APP ARENTLY MISPLACED IN THE TEETH OF THE DECISION OF THE APEX COURT IN CIT VS S.CHENNIAPPA MUDALIAR,74 ITR 4 1. 3 MA NO.112/AHD/2011 5. IN THE LIGHT OF AFORESAID DECISION OF HONBLE GA UHATI HIGH COURT AND REASONS GIVEN BY THE AFORESAID APPLICANTS, WE RECALL THE IMPUG NED ORDER DATED ORDER DATED 1.4.2011 OF THE ITAT SUBJECT TO PAYMENT OF COST OF RS. 1,000/- TO THE REVENUE AND DIRECT THE REGISTRY TO FIX THE MATTER FOR HEARING ON 11.10.2011. BOTH THE PARTIES WERE INFORMED IN THE OPEN COURT ACCORDING LY. 6 IN THE RESULT, MISCELLANEOUS APPLICATION IS ALLOWED ORDER PRONOUNCED IN THE COURT TODAY ON 12-08-2011 SD/- SD/- ( BHAVNESH SAINI ) JUDICIAL MEMBER ( A N PAHUJA ) ACCOUNTANT MEMBER DATED : 12-08-2011 COPY OF THE ORDER FORWARDED TO: 1. SHRI DASHRATHBHAI KANJIBHAI CHAUDHARY, OM NAMAH SHIVAY TRANSPORT CO., F/3, JAY LAXMI TOWER, OPPOSITE LACAS A INN HOTEL, NEAR SBI COMMERCIAL, GANESH CHOKADI, ANAND 2. INCOME-TAX OFFICER, WAR-1, PALANPUR. 3. CIT CONCERNED 4. CIT(A)-XV, AHMEDABAD 5. DR, ITAT, AHMEDABAD BENCH-A, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD