Shri Ganpatlal Manroopji Soni, Ahmedabad V. The Income Tax Officer, Ward-6(1)(4), Ahmedabad

MA 117/AHD/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5553 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 21-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER M.A. NO: 117/AHD/2019 (IN ITA NO. 547/AHD/2017) (ASSESSMENT YEAR: 2012-13) SHRI GANPATLAL MANROOPJI SONI 203, SAGAR APARTMENTS, B/H GHANSIRAM CHOUDHARI BHUVAN, SAHIBAUG, AHMEDABAD- 380004 VS ITO, WARD- 6(1)(4), ROOM NO. 108, 1 ST FLOOR, NARAYAN CHAMBER, ASHRAM ROAD, AHMEDABAD- 380006 (APPELLANT) (RESPONDENT) PAN: AFS PS6 696 D APPELLANT BY : SHRI DHAVAL SHAH, AR RESPONDENT BY : SHRI VINOD TANWANI, SR. D.R. ( )/ ORDER DATE OF HEARING : 03-05-2019 DATE OF PRONOUNCEMENT : 22-05-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. BY VIRTUE OF THIS MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE U/S 254(2) OF THE ACT, THE ASSESSEE INTENDS TO RECALL THE IMPUGNE D EX-PARTE ORDER DT. 30.11.2018 PASSED BY THIS TRIBUNAL. 2. THE LD. AR BEFORE US SUBMITTED AS UNDER: 1. VIDE ORDER DATED 30.11.2018, THE HONBLE TRIBUN AL HAS DECIDED THE APPEAL IN ITA NO. 547/AHD/2017 FOR THE ASSESSMENT YEAR 2012-1 3 BY DISMISSING THE APPEAL M.A. NO. 117/AHD/2019 A.Y. 2012-13 2 FILED BY THE APPLICANT IN LIMINE. THE SAID ORDER I S RECEIVED BY THE APPLICANT ON 23.01.2019. THE COPY OF THE SAID ORDER IS ENCLOSED HEREWITH. 2. THE SAID APPEAL WAS DISMISSED BY THE HONBLE TRI BUNAL DUE TO NON-APPEARANCE OF THE APPLICANT ON THE DATE OF HEARING BY RELYING ON THE DECISION OF HONBLE DELHI TRIBUNAL IN THE CASE OF CIT V. MULTIPLAN INDIA PVT. LTD. [38 ITD 320(DEL)]. THE HONBLE TRIBUNAL HAS STATED THAT THE APPLICANT SHAL L BE AT LIBERTY TO RECALL THE ORDER IF PREVENTED BY SUFFICIENT CAUSE FOR NON-APPE ARANCE ON THE DATE OF HEARING. 3. AT THE OUTSET, IT IS SUBMITTED THAT AS PER THE D ECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF BHARAT PETROLEUM CORPORATION L TD. V. INCOME TAX APPELLATE TRIBUNAL [359 ITR 371], THE IMPUGNED ORDER PASSED B Y HONBLE TRIBUNAL DISMISSING THE APPEAL OF THE APPLICANT FOR NON-APPE ARANCE CAN BE RECTIFIED AS PER S. 254 OF THE ACT. 4. IT IS NEXT SUBMITTED THAT THE APPLICANT WAS PREV ENTED BY SUFFICIENT CAUSE BEYOND HIS CONTROL FOR NON-APPEARANCE BEFORE HONBLE TRIBU NAL. THE SAME IS EXPLAINED HEREINUNDER: 5. IT IS SUBMITTED THAT THE APPLICANT IS A SENIOR C ITIZEN AND NOT AWARE OF TAX LAWS AND PROCEDURES BEFORE HONBLE TRIBUNAL. THE APPLIC ANT HAD RECEIVED NOTICE OF HEARING BEFORE HONBLE TRIBUNAL FIXING THE DATE OF HEARING ON 10.08.2018. ACCORDINGLY, THE APPLICANT APPROACHED HIS CHARTERED ACCOUNTANT WHO ADVISED HIM TO APPOINT A COUNSEL TO APPEAL BEFORE HONBLE T RIBUNAL. ACCORDINGLY, A CHARTERED ACCOUNTANT MR. NIMISH B SHAH, PARTNER OF FIRM NAMELY SHAH & SHAH ASSOCIATES WAS APPOINTED TO LOOK AFTER THE AFORESAI D PROCEEDINGS BEFORE HONBLE TRIBUNAL AND THE RELEVANT DETAILS WERE HANDED OVER TO THEM. FURTHER, THE AUTHORITY LETTER WAS ALSO EXECUTED IN THEIR FAVOUR. 6. HOWEVER, THE APPLICANT WAS INFORMED THAT ON THE DATE OF HEARING, THE COUNSEL MR. NIMISH B SHAH FROM THE AFORESAID CHARTERED ACCO UNTANT FIRM WHO WAS LOOKING AFTER THE PRESENT APPEAL, EXPIRED ON 9 TH AUGUST, 2018, BECAUSE OF WHICH THERE WAS NON-APPEARANCE BEFORE HONBLE TRIBUNAL. ACCORDINGLY, NOTICE OF NEXT DATE OF HEARING WAS RECEIVED BY THE APPLICANT AND T HE HEARING WA FIXED ON 18.10.2018. THE NEXT DATE OF HEARING WAS INFORMED BY THE APPLICANT TO STAFF OF THE SAID FIRM. THE APPLICANT WAS UNDER A BONA FIDE BEL IEF THAT SOME OTHER PERSON FROM THE SAID FIRM WOULD APPEAR AND ARGUE BEFORE HO NBLE TRIBUNAL ON THE SAID DATE. HOWEVER, EVEN ON THE NEXT DATE OF HEARING I. E. 18.10.2018, NO ONE APPEARED BEFORE HONBLE TRIBUNAL WHICH LED THE HEARING BEING CONCLUDED EX-PARTE DISMISSING THE APPEAL OF THE APPLICANT IN LIMINE. 7. THE APPELLANT SUBMITS THAT IT IS ONLY AFTER RECE IVING THE ORDER DATED 30.11.2018, THE APPLICANT REALIZED THAT THERE WAS NON-APPEARANC E AND THAT THE APPEAL WAS HEARD EX-PARTE. 8. THE APPLICANT SUBMITS THAT HE HAS TAKEN ALL POSS IBLE STEPS AND MEASURES TO LITIGATE THE PRESENT APPEAL BEFORE HONBLE TRIBUANL . THE APPLICANT WAS VERY M.A. NO. 117/AHD/2019 A.Y. 2012-13 3 INTERESTED IN PURSUING THE APPEAL BEFORE HONBLE TR IBUNAL BUT WAS PREVENTED BY THE AFORESAID CAUSE WHICH IS BEYOND HIS CONTROL. 9. THE AFORESAID FACTS ARE ALSO CONFIRMED BY THE AP PLICANT ON DULY NOTARIZED AFFIDAVIT WHICH IS ENCLOSED HEREWITH. 10. FURTHER, IT CAN ALSO BE SEEN THAT THE APPLICANT HAS NOW APPROACHED ANOTHER CHARTERED ACCOUNTANT TO REPRESENT THE MATTER AND TO REQUEST THE HONBLE TRIBUNAL TO RECALL THE ORDER AND GRANT ONE MORE OPPORTUNITY TO THE APPLICANT TO REPRESENT THE CASE ON MERITS. THIS ALSO SHOWS THAT THE APPLI CANT IS INTERESTED IN PURSUING THE APPEAL. 11. IT IS NEXT SUBMITTED THAT EVEN ON MERITS, THE A PPLICANT HAS GOOD CASE AND IF SUFFICIENT OPPORTUNITY IS GRANTED, THE APPLICANT WI LL PROVE THAT THE ADDITIONS MADE IN THE PRESENT CASE ARE INCORRECT AND DESERVES TO B E DELETED. 12. THE APPLICANT THEREFORE PRAYS THAT THE PRESENT ORDER OF THE HONBLE TRIBUNAL MAY KINDLY BE RECALLED AND THE SAME MAY BE HEARD AF RESH AFTER GIVING SUFFICIENT OPPORTUNITY TO THE APPLICANT. 13. FOR THIS ACT OF KINDNESS, THE APPLICANT SHALL E VER PRAY. 3. ON THE OTHER HAND THE LD. DR RAISED NO OBJECTI ON IF THE MATTER IS RECALLED FOR FRESH ADJUDICATION AS PER THE PROVISION OF LAW. 4. HEARD RIVAL SUBMISSIONS AND PERUSED THE RECOR D. ON PERUSAL OF THE ORDER DT. 30.11.2018, WE FIND THAT IN SPITE OF SERVICE OF NOT ICES BY THE REGISTRY NEITHER ANY ONE APPEARED NOR THERE WAS ANY ADJOURNMENT APPLICATION FILED ON BEHALF OF ASSESSEE FOR THE HEARING ON 18.10.2018. THUS, FOLLOWING THE VARIOUS DECISIONS IN THE CASES OF MULTIPLAN INDIA (P) LTD REPORTED IN 38 ITD 320 (DEL), HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT REPORTED IN 223 ITR 480(MP) THE TRIBUNAL DISMISSED THE APPEAL OF ASSESSEE BY PASSIN G EX PARTE ORDER FOR NON PROSECUTION. WE FIND THAT THERE WAS SUFFICIENT REAS ON FOR THE ASSESSEE IN NOT APPEARING BEFORE THE TRIBUNAL ON THE SAID DATE OF HEARING [10 .10.2018]. 5. THEREFORE, IN VIEW OF SUBMISSION OF ASSESSEE WE RECALL THE ORDER DATED 30.11.2018 BY ALLOWING THIS MISC. APPLICATION FILED BY THE ASSESSEE. M.A. NO. 117/AHD/2019 A.Y. 2012-13 4 6. NEXT DATE OF HEARING IN THIS MATTER IS 10.07.2 019 AND NO NOTICE WILL BE SENT TO THE PARTIES. 7. IN THE RESULT, THE MISC. APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 22-05-20 19 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 22/05/2019 TANMAY TRUE COPY COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT. REGISTRAR IT AT, AHMEDABAD 1.DATE OF DICTATION 03-05-2019 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE DI CTATING MEMBER 03-05-2019 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 20-05-2019. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 20 -05-2019 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 22 -05-2019 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 22-05-2019. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER