Shri Vinayak Jaysingh Surve, Baroda V. The ACIT.,Circle-2(2), Baroda

MA 124/AHD/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6790 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 03-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUDHANSHU S JHAD R
• Assessee Lawyers: S N DIVATIA
• Keywords: Opportunity of being heard; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'D' BEFORE SHRI T K SHARMA, JUDICIAL MEMBER AND SHRI A N PAHUJA, ACCOUNTANT MEMBER M A NO.124/AHD/2011 [IN ITA NO.109/AHD/2009 (ASSESSMENT YEAR:-2005-06) SHRI VINAYAK JAYSINGH SURVE, C-3, SAHAJANAND APARTMENT, NR. WARD-6 OFFICE, OLD PADRA ROAD, BARODA V/S ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-2(2) BARODA PAN:ABWPS4100N [APPLICANT] [ORIGINAL APPELLANT] [RESPONDENT] [ORIGINAL RESPONDENT] APPLICANT BY :- SHRI S N DIVATIA, AR RESPONDENT BY:- SHRI SUDHANSHU S JHA,DR DATE OF HEARING:- 09-09-2011 DATE OF PRONOUNCEMENT:- 09-09-2011 O R D E R A N PAHUJA: THIS MISC. APPLICATION[MA] HAS BEEN FILED ON 3.8. 2011 AGAINST AN ORDER DATED 05-05-2011 OF THE TRIBUNAL I N ITA.NO.109/AHD/2009 FOR THE AY 2005-06, DISMISSING THE APPEAL OF THE ASSESSEE, RELYING UPON THE DECISION OF DELHI BE NCH OF THE TRIBUNAL IN THE CASE OF MULTIPLAN INDIA (P) LTD. VS CIT 38 ITD 320 (DEL). 2 IN THE MISCELLANEOUS APPLICATION, THE ASSESSEE S UBMITTED THAT THE ASSESSEE HAVING SENT THROUGH COURIER ON 3.5.201 1 ITS APPLICATION DT.3.5.2011, SEEKING ADJOURNMENT ON THE GROUND OF PER SONAL DIFFICULTY OF HIS ADVOCATE SHRI VIPUL SHAH OF K B SHAH & CO. BARODA, A ND THEIR REQUEST FOR ADJOURNMENT HAD NOT BEEN CONSIDERED . A COPY OF SAID APPLICATION FOR ADJOURNMENT AND DELIVERY NOTE OF THE COURIER GMS EXP RESS P. LTD ARE ENCLOSED WITH THE MA. IN THESE CIRCUMSTANCES, THE APPLICA NT SOUGHT RECALL OF THE AFORESAID ORDER DATED 5.5.2011. 2 MA NO.124/AHD/2011 . 3. THE LD. AR ON BEHALF OF THE ASSESSEE MERELY RE ITERATED WHAT IS MENTIONED IN THE MA WHILE THE LD. DR DID NOT OPPOS E THE MA. 4. AFTER HEARING THE PARTIES AND CONSIDERING THE FACTS OF THE CASE, WE ARE OF THE OPINION THAT THE DISPOSAL OF T HE APPEAL WAS IN VIOLATION OF THE PRINCIPLE OF ' AUDI ALTERAM PARTEM '. THE PRAYER IN SUCH A SITUATION FOR REHEARING THE APPEAL IS NOT A PRAYER TO REVIEW ITS EARLIER DECISION, RATHER IT IS TO SET ASIDE AN EX P ARTE ORDER AND FOR AFFORDING AN OPPORTUNITY OF BEING HEARD. 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 WH ERE THE ASSESSEE SHOWS THAT IT HAD A REASONABLE CAUSE FOR BEING ABSE NT AT A TIME WHEN THE APPEAL WAS TAKEN UP AND WAS DECIDED EX PAR TE. IN THIS CONNECTION, HONBLE GAUHATI HIGH COURT IN THE CASE OF RAJENDRA PRASAD BORAH VS ITAT AND OTHERS,302 ITR 243, RELYIN G UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CI T VS S.CHENNIAPPA MUDALIAR,74 ITR 41 AND THEIR OWN DECIS ION IN THE ASSAM TRIBUNE VS. CIT,285 ITR 452, HELD THAT APART FROM THE FACT THAT, SECTION 254( EARLIER SECTION 33)OF THE ACT MAKES IT INCUMBENT ON THE LEARNED TRIBUNAL TO DISPOSE OF THE APPEALS ON MERITS AS HAS BEEN ENUNCIATED BY THE APE X COURT IN CIT VS S.CHENNIAPPA MUDALIAR,74 ITR 41, RULE 24 AS IT S TANDS, PER SE DOES NOT EMPOWER THE LEARNED TRIBUNAL TO DISMISS AN APPEAL FOR DEFAULT IN THE ABSENCE OF THE APPELLANT. THE LEARNE D TRIBUNALS RELIANCE ON THE DECISION OF THE INCOME-TAX APPELLAT E TRIBUNAL, DELHI RENDERED IN CIT VS.MULTIPLAN INDIA(P) LTD.,38 ITD 3 20(DELHI) , IS APPARENTLY MISPLACED IN THE TEETH OF THE DECISION O F THE APEX COURT IN CIT VS S.CHENNIAPPA MUDALIAR,74 ITR 41. 5. IN THE LIGHT OF AFORESAID DECISION OF HONBLE GAUHATI HIGH COURT AND REASONS GIVEN BY THE APPLICANT, WE RECALL THE IMPUGNED ORDER DATED ORDER DATED 5.5.2011 OF THE ITAT AND DIRECT THE REGISTRY TO FIX THE MATTER FOR HEARING ON 16.11.2011. BOTH THE PART IES WERE INFORMED IN THE OPEN COURT ACCORDINGLY. 3 MA NO.124/AHD/2011 6 IN THE RESULT, MISCELLANEOUS APPLICATION IS ALL OWED. ORDER PRONOUNCED IN THE COURT TODAY ON 9 -09-2011 SD/- SD/- ( T K SHARMA ) JUDICIAL MEMBER ( A N PAHUJA ) ACCOUNTANT MEMBER DATED : 9-09-2011 COPY OF THE ORDER FORWARDED TO: 1. SHRI VINAYAK JAYSINGH SURVE, C-3, SAHAJANAND APA RTMENT, NR. WARD-6 OFFICE, OLD PADRA ROAD, BARODA 2. THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-2(2 ) BARODA 3. CIT CONCERNED 4. CIT(A)-II, BARODA 5. DR, ITAT, AHMEDABAD BENCH-D, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD