Tara Health Foods Ltd., Malerkotla V. DCIT, Ludhiana

MA 116/CHANDI/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0965 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 year(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-03-2021
• Assessment Year: 2010-2011
• Appeal Filed On: 15-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA
• Keywords: Principle of natural justice; Reasonable cause; Set aside
• Section: 254(2); 22

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B , CHANDIGARH , ! ' # $ % & ' ( , ' BEFORE SMT.DIVA SINGH, JUDICIAL MEMBER AND SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER MA NO.116/CHD/2018 IN ./ ITA NO.1036/CHD/2013 / ASSESSMENT YEAR : 2010-11 TARA HEALTH FOODS LTD., VILLAGE JITWAL KALAN, TEHSIL MALERKOTLA. THE D.C.I.T., CENTRAL CIRCLE-I, LUDHIANA. ./ PAN:AACCT3940R /APPELLANT /RESPONDENT /ASSESSEE BY: SHRI ATUL GOYAL, CA. ! / REVENUE BY: SHRI ASHOK KHANNA, ADDL.CIT ' # $ /DATE OF HEARING : 16.02.2021 %&'( $ /DATE OF PRONOUNCEMENT: 22.02.2021 (VIRTUAL COURT) /ORDER PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER : THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE ASSESSEE FOR RECALLING THE ORDER OF THE TRI BUNAL DATED 29.04.2015 IN ITA NO.1036/CHD/2013 RELATING T O MA NO.116/CHD/2018 A.Y.2010-11 2 ASSESSMENT YEAR 2010-11, WHICH WAS DISMISSED EX-PAR TE FOR WANT OF PROSECUTION. 2. THE APPLICANT, IN ITS APPLICATION SUBMITTED THE REASON FOR NOT ATTENDING THE HEARING ON 29.04.2015 AS UNDER: THE APPELLANT ASSESSEE FILED THE APPLICATION UNDER SECTION 254(2) FOR THE RECALLING OF THE EX PA RTE ORDER DATED 29.04.2015 PASSED BY THE HONBLE ITAT BENCH FOR NON PROSECUTION BY THE APPELLANT. THE APPELLANT ASSESSEE MAKES FOLLOWING SUBMISSIONS WITH A REQUEST FOR THE RECALL OF THE APPELLATE ORDE R. (A) THE APPELLANT ASSESSEE HAD ENGAGED A COUNSEL FOR APPEARANCE FOR AND ON OUR BEHALF IN THE CASE. OUR COUNSEL APPEARED ON OUR BEHALF ON THE PRECEDING DATE OF HEARING AND SOUGHT ADJOURNMENT AND THE SAME WAS ADJOURNED ON HIS REQUEST. THE POWER OF ATTORNEY DULY SIGNED BY THE AUTHORIZED REPRESENTATIVE WAS GIVEN TO THE COUNSEL AND SHOULD HAVE BEEN PLACED ON RECORD OF THE HONBLE TRIBUNAL. THE APPELLANT ASSESSEE DID NOT RECEIVE NOTICE OF HEARING FOR 29.04.2015. HOWEVER, THE HONBLE BENCH MAY HAVE PROVIDED ADJOURNMENT FOR THE SAID DATE TO OUR COUNSEL. HOWEVER, ON THE ABOVE MENTIONED DATE, AS PER THE DECISION OF THE HONBLE ITAT, NO ONE APPEARED ON BEHALF OF THE ASSESSEE ON 29.04.2015 I.E. THE COUNSEL ENGAGED BY THE ASSESSEE DID NOT APPEAR BEFORE THE HONBLE BENCH. SINCE , THE DATE OF FIXATION FOR 29.04.2015 WAS NOT COMMUNICATED TO THE ASSESSEE AND THE COUNSEL AUTHORIZED TO APPEAR ON BEHALF OF THE ASSESSEE FAILED TO APPEAR WITHOUT ANY INTIMATION TO THE ASSESSEE ABOUT THE SAME, THE ASSESSEE BEING IN BONA FIDE BELIEF THAT THE DULY AUTHORIZED COUNSEL SHALL APPEAR BEFORE THE HONBLE BENCH. THE FAILURE OF THE COUNSEL TO APPEAR CANNOT AND SHOULD NOT BE MA NO.116/CHD/2018 A.Y.2010-11 3 TAKEN AS NEGLIGENCE OF THE APPELLANT ASSESSEE AND THE ASSESSEE THEREFORE, REQUESTS THAT THE ORDER BE RECALLED TO SERVE THE INTEREST OF JUSTICE. 3. IN SUPPORT OF THE ABOVE THE ASSESSEE HAS ALSO FI LED AFFIDAVIT OF SHRI BALWANT SINGH, DIRECTOR OF THE AS SESSEE COMPANY THE LD. DR OBJECTED TO THE SAME. 4. WE HAVE HEARD THE PARTIES. IT IS A MATTER OF REC ORD THAT THE ASSESSEE WAS BEING REPRESENTED BY A DULY AUTHOR IZED COUNSEL ON WHOSE REQUEST THE HEARING OF THE APPEAL WAS ADJOURNED TO 29/04/15,THE NON ATTENDANCE OF WHICH D ATE RESULTED IN THE DISMISSAL OF THE APPEAL. THE PRESEN T MISCELLANEOUS APPLICATION, WE HAVE NOTED IS BEING REPRESENTED BY A DIFFERENT COUNSEL. THE CONTENTION OF THE ASSESSEE ,STATED ON OATH, THAT IT WAS UNDER THE BEL IEF THAT SINCE THE COUNSEL WAS PURSUING THE APPEAL , IT WAS UNAWARE OF THE NOTICE OF HEARING, WHICH WAS GIVEN I N THE OPEN COURT, DOES NOT JUSTIFY THE NON ATTENDANCE OF HEARING ,SINCE THE AUTHORIZED REPRESENTATIVE FOR ALL PURPOS ES REPRESENTS THE ASSESSEE. THE SAME WAS POINTED OUT T O THE LD.COUNSEL FOR THE ASSESSEE WHO FAIRLY ACKNOWLEDGED THE MA NO.116/CHD/2018 A.Y.2010-11 4 SAME AND UNDERTOOK TO ENSURE THAT SUCH LAPSE ON THE PART OF THE ASSESSEE WOULD NOT OCCUR IN THE FUTURE. 5. CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES W E ARE OF THE VIEW THAT THOUGH THE NON ATTENDANCE OF H EARING IS NOT JUSTIFIED, BUT AT THE SAME TIME THE POSSIBI LITY OF THE ASSESSEE BEING UNAWARE OF THE NOTICE OF HEARING OF APPEAL CANNOT BE COMPLETELY RULED OUT. FURTHER CONSIDERING THAT THE ASSESSEE, REPRESENTED BY ITS D IRECTOR, HAS ADMITTED ON OATH THE FACTS LEADING TO ITS NEGLI GENCE AND HAS UNDERTAKEN BEFORE US NOT TO REPEAT THE SAME IN FUTURE, WE ARE OF THE VIEW THAT TO MEET THE ENDS OF NATURAL JUSTICE THE ASSESSEE OUGHT TO BE GIVEN A FAIR OPPO RTUNITY OF HEARING. THEREFORE EXERCISING THE POWER OF THE T RIBUNAL PROVIDED IN THE PROVISO TO RULES 24 AND 25 OF THE I TAT RULES 1963, TO SET ASIDE AN EX-PARTE ORDER AND REST ORE THE APPEAL IN CASE WHERE AN ASSESSEE DEMONSTRATES REASONABLE CAUSE FOR NON-APPEARANCE, AND CONSIDERIN G THE ENTIRETY OF FACTS IN THE PRESENT CASE, WE ARE OF TH E VIEW THAT THIS IS A FIT CASE FOR RECALLING THE ORDER FOR FRESH HEARING, WHICH WE HEREBY DO. THE REGISTRY IS DIRE CTED TO FIX THE HEARING OF THE APPEAL ON 24.03.2021, WHICH WAS MA NO.116/CHD/2018 A.Y.2010-11 5 NOTED BY BOTH THE PARTIES. NO SEPARATE NOTICE BE IS SUED TO THE PARTIES. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE APPLICANT IS ALLOWED. ORDER PRONOUNCED ON 22.02.2021. SD/- SD/- $ % & ' ( (DIVA SINGH ) (ANNAPURNA GUPTA) ! ' /JUDICIAL MEMBER )* ' /ACCOUNTANT MEMBER $ /DATED: 22 ND FEBRUARY, 2021 * * &) *+,+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ' - / CIT 4. ' - ( )/ THE CIT(A) 5. +./ 0 , $0 , 123/4 / DR, ITAT, CHANDIGARH 6. /35# / GUARD FILE &) ' / BY ORDER, / ASSISTANT REGISTRAR