PROFESSIONAL GROUP EDUCATION & TECHNICAL DEVELOPMENT SOCIETY, JAIPUR V. INCOME TAX OFFICER (HQTRS) (EXEMPTION), JAIPUR

MA 114/JPR/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7787 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 10-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAJESH SONI
• Section: 143(3); 254(2)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S B JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ MA NO. 114/JP/2018 (ARISING OUT OF ITA NO. 847/JP/2017) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13 PROFESSIONAL GROUP EDUCATION & TECHINCAL DEVELOPMENT SOCIETY, 17, GALI NO. 12, QUEENS ROAD, AJMER ROAD, JAIPUR CUKE VS. INCOME TAX OFFICER (HD. QRS.) (EXEMPTIONS), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABTP 2723 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. RAJESH SONI (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT. RUNI PAL (DCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 17.07.2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 28.07.2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE CO-ORDINAT E BENCH IN ITA NO. 847/JP/2017 DATED 17/01/2018. 2. IN ITS MISCELLANEOUS PETITION, THE ASSESSEE HAS SUBMITTED THAT THE APPEAL HAS BEEN DISMISSED BY THE TRIBUNAL ON ACCOUN T OF NON- APPEARANCE ON THE SCHEDULED DATE OF HEARING. IT WA S SUBMITTED THAT THE MATTER WAS LISTED FOR HEARING ON 16.01.2018. HO WEVER, DUE TO M.A. NO. 114/JP/2018 PROFESSIONAL GROUP EDUCATION & TECHNICAL DEVELOPMEN T SOCIETY, JAIPUR VS. ITO, JAIPUR 2 OVERSIGHT, THE SCHEDULED DATE OF HEARING WAS WRONGL Y NOTED AS 28.02.2018 BY SH. KAMLESH KUMAR, EMPLOYEE OF THE CO UNSEL OF THE ASSESSEE WHO HAD APPEARED FOR SEEKING THE ADJOURNME NT AND AN AFFIDAVIT OF SHRI KAMLESH KUMAR HAS BEEN PLACED ON RECORD. IT WAS SUBMITTED THAT SUBSEQUENTLY, THE AUTHORIZED REPRESE NTATIVE, SH. RAJESH SONI, C.A REACHED THE TRIBUNAL ON THE DATE NOTED IN THE DIARY BY SH. KAMLESH KUMAR AND HE WAS INFORMED THAT THE DECISION IN THE MATTER HAS ALREADY BEEN PRONOUNCED ON 17.01.2018. IT WAS S UBMITTED THAT THE ASSESSEE SUBSEQUENTLY OBTAINED A COPY OF THE ORDER AND THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED ON 10.08.2 018. IT WAS SUBMITTED THAT THE MISCELLANEOUS APPLICATION HAS TH EREAFTER BEEN FILED WITHIN STIPULATED PERIOD OF 6 MONTHS FROM THE DATE OF ACKNOWLEDGEMENT OF THE FACT OF DISMISSAL OF THE APPEAL BY THE TRIBU NAL AND GIVEN THAT THE APPEAL HAS BEEN DISMISSED ON ACCOUNT OF NON-APPEARA NCE AND WITHOUT ADJUDICATION ON MERITS, IN THE INTEREST OF JUSTICE, THE SAME MAY BE RECALLED TO HEAR THE ARGUMENTS ON MERITS. 3. PER CONTRA, THE LD. DR SUBMITTED THAT SINCE NONE HAS APPEARED ON BEHALF OF THE ASSESSEE ON THE SCHEDULED DATE OF HEA RING I.E, 16.01.2018, THE MATTER WAS HEARD BY THE TRIBUNAL EX-PARTE QUA THE ASSESSEE AND THE ORDER HAS BEEN PRONOUNCED BY THE T RIBUNAL ON 17.01.2018. IT WAS SUBMITTED THAT THE ORDER HAS BE EN PRONOUNCED ON 17.01.2018 AND THE ASSESSEE CANNOT BE TAKE THE PLEA THAT IT CAME TO KNOW OF THE SAME IN THE LAST WEEK OF FEBRUARY 2018 AND THEREFORE, THE MISC. APPLICATION IS BARRED BY LIMITATION U/S 254(2 ) OF THE ACT. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE IS A HABITUAL N ON-COMPLIANT AND EVEN BEFORE THE ASSESSING OFFICER AS WELL AS LD. CI T(A), THERE IS NO M.A. NO. 114/JP/2018 PROFESSIONAL GROUP EDUCATION & TECHNICAL DEVELOPMEN T SOCIETY, JAIPUR VS. ITO, JAIPUR 3 COMPLIANCE ON THE PART OF THE ASSESSEE AND THE ORDE R HAS BEEN PASSED BY THE ASSESSING OFFICER U/S 143(3) READ WITH 144 O F THE ACT. IT WAS ACCORDINGLY SUBMITTED THAT THERE IS NO INFIRMITY IN THE SAID ORDER PASSED BY THE TRIBUNAL WHEREBY IT HAS CONFIRMED THE ORDER PASSED BY THE LOWER AUTHORITIES. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ORDER HAS BEE N PRONOUNCED BY THE CO-ORDINATE BENCH ON 17.01.2018 AND THEREAFTER, THE SAME HAS BEEN DISPATCHED BY THE REGISTRY ON 30.01.2018, AT THE AD DRESS STATED BY THE ASSESSEE FOR COMMUNICATION IN FORM 36, THROUGH SPEE D POST. THE ORDER SO DISPATCHED HAS NOT RETURNED UNSERVED BY THE POST AL AUTHORITIES AND IN ABSENCE OF CONFIRMATION BY THE POSTAL AUTHORITIE S OF THE EXACT DATE OF DELIVERY, IN NORMAL CIRCUMSTANCES, IT CAN BE PRESUM ED THAT IT WOULD HAVE BEEN DELIVERED TO THE ASSESSEE WITHIN NEXT FEW DAYS, SAY SOMEWHERE IN THE FIRST WEEK OF FEBRUARY, 2018. THER EFORE, AS PER SECTION 254(3), WHERE IT IS STIPULATED THAT THE TRI BUNAL SHALL SEND A COPY OF THE ORDER PASSED BY IT TO THE ASSESSEE, THE SAME HAS BEEN COMPLIED WITH. FURTHER, RULE 35 OF THE TRIBUNAL RULES WHERE IT REQUIRES THAT THE ORDERS ARE REQUIRED TO BE COMMUNICATED TO THE PARTI ES HAS BEEN DULY COMPLIED WITH. THEREFORE, IN THE INSTANT CASE, WE F IND THAT THE ORDER OF THE COORDINATE BENCH HAS BEEN DULY SUPPLIED AND COM MUNICATED TO THE ASSESSEE IN THE FIRST WEEK OF FEBRUARY 2018 AND THE CONTENTION OF THE ASSESSEE THAT IT CAME TO KNOW OF THE ORDER ONLY ON 28.02.2018 WHEN HE ENQUIRED FROM THE REGISTRY ABOUT THE MATTER CANNOT BE ACCEPTED. M.A. NO. 114/JP/2018 PROFESSIONAL GROUP EDUCATION & TECHNICAL DEVELOPMEN T SOCIETY, JAIPUR VS. ITO, JAIPUR 4 5. NOW, COMING TO FILING OF MISCELLANEOUS APPLICATI ON AGAINST THE AFORESAID ORDER U/S 254(2) IS CONCERNED, THE COURTS HAVE HELD FROM TIME TO TIME THAT A PERSON WHO IS AGGRIEVED OR CONCERNED WITH AN ORDER WOULD LEGITIMATELY BE EXPECTED TO EXERCISE HIS RIGH TS CONFERRED BY THE PROVISION AND UNLESS THE ORDER IS COMMUNICATED OR I S KNOWN TO HIM, EITHER ACTUALLY OR CONSTRUCTIVELY, HE WOULD NOT BE IN A POSITION TO AVAIL SUCH A REMEDY. IN THE INSTANT CASE, THE ORDER HAS B EEN COMMUNICATED TO THE ASSESSEE IN FIRST WEEK OF FEBRUARY 2018 AND IT HAS THEREFORE, A TIME PERIOD OF SIX MONTHS FROM END OF FEBRUARY 2018 TO FILE THE MISC. APPLICATION. THE MISC. APPLICATION WHICH HAS BEEN FILED ON 10.08.2018 IS THEREFORE WELL BEFORE THE EXPIRY OF THE LIMITATI ON PERIOD AND IS HEREBY ADMITTED. 6. FURTHER, WE FIND THAT THE CO-ORDINATE BENCH HAS NOT DECIDED THE MATTER ON MERIT AND HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE FOR NON-PROSECUTION. THE ASSESSEE HAS SUBMITTED AN EXP LANATION FOR NON- COMPLIANCE ON THE SCHEDULED DATE OF THE HEARING SUP PORTED BY AN AFFIDAVIT. THEREFORE, IN THE INTEREST OF JUSTICE A ND FAIR PLAY, WE BELIEVE THAT THE ASSESSEE DESERVE ONE MORE OPPORTUNITY TO R EPRESENT ITS MATTER ON MERITS, ACCORDINGLY, WE HEREBY THE RECALL THE OR DER PASSED BY THE CO-ORDINATE BENCH AND THE REGISTRY IS DIRECTED TO F IX THE MATTER TO HEAR THE ARGUMENT ON MERITS IN DUE COURSE. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISPOSED OFF IN LIGHT OF AFORESAID DIRECTIONS. M.A. NO. 114/JP/2018 PROFESSIONAL GROUP EDUCATION & TECHNICAL DEVELOPMEN T SOCIETY, JAIPUR VS. ITO, JAIPUR 5 ORDER PRONOUNCED IN THE OPEN COURT ON 28/07/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 28/07/2020. GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- PROFESSIONAL GROUP EDUCATION & TECHN ICAL DEVELOPMENT SOCIETY, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ITO, (HD. QRS.) (EXEMPTIONS),CIRCLE -01, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { M.A. NO. 114/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR.