Arpit Goel, New Delhi V. ITO, New Delhi

MA 126/DEL/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4555 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 01-08-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M BARANWAL
• Keywords: Principle of natural justice
• Section: 250; 43

Judgement Text

1 MA Nos. 124 to 126/Del/2021 Arpit Goel Vs. ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “A”: NEW DELHI BEFORE SHRI G.S. PANNU, PRESIDENT AND SHRI KUL BHARAT, JUDICIAL MEMBER M.A. Nos. 124, 125 & 126/Del/2021 ( In ITA No. 349, 350 & 351/DEL/2017) Assessment Yrs: 2009-10, 2010-11 & 2011-12 Arpit Goel, Office No. 205, 4262/3, Ansari Road, Darya Ganj, New Delhi-110002 PAN- ARCPG8663J Vs Income-tax Officer, Ward-30(2), New Delhi APPLICANT RESPONDENT Applicant by Sh. Anil Kumar Gupta, Adv. Respondent by Sh. M Baranwal, Sr. DR Date of hearing 01.04.2022 Date of pronouncement 29.04.2022 O R D E R PER KUL BHARAT, JM: These three miscellaneous applications have been preferred by the assessee, seeking recalling of the consolidated order dated 28.04.2021 passed by the ITAT Delhi Bench “A” in ITA nos. 349 to 351/Del/2017, pertaining to the assessment years 2009-10 to 2011-12. 2. Learned counsel for the assessee reiterated the submissions as made in the misc. applications, seeking recalling of the consolidated order of the Tribunal dated 2 MA Nos. 124 to 126/Del/2021 Arpit Goel Vs. ITO 28.4.2021 for assessment years 2009-10, 2010-11 & 2011-12. For the sake of clarity, the common contentions made in the misc. applications, for recalling of the Tribunal’s order, are reproduced as under: “(1) The Appellant/Assessee had fded appeal on 23-01-2017 against the Order u/s 250 dated 02- 11-2016 of the Id. CIT (Appeals)-Delhi (served on 05-12-2016 to the assessee) vide Form No. 36 dated 23-01-2017 along with the Grounds of Appeal & other requisite documents as well as the Filing- Fee. ( 2) First Notice dated 30-07-2020 fixing date of hearing on 24-08-2020 was received on 25-08- 2020 at the address (during initial un-lockdown period of pandemic) of the appellant / assessee. Copy of the alleged/above- referred Notice as well as its Envelope - refer Annexure Nos. 1 & 2; thus, the impugned first notice was not served in-time to the appellant/assessee, therefore, he could not have appeared on lapsed date, i.e. 24-8- 2020, w hich tantamount to non-service of first notice; The above-submitted facts can be examined & established for their veracity by reference to the originals of said documents on case-file (records with the Registrar office) at your end; Moreover, the Hon’ble Bench was not functional/operational on 24-08-2020 and was not held, as per Inspection on 15-07-2021 of the case-file with the Registry, and it was adjourned to 09- 11-2020; (3) On 09-11-2020 (for which no notice was served to Appellant) again the Hon’ble Bench was not functional/operational and was not held, as per Inspection on 15-07-2021 of the case-file with the Registry, and it was adjourned to 19-01-2021; (4) On 19-01-2021 (for which no notice was served to Appellant) again the Hon’ble Bench was not functional/operational and was not held, as per Inspection on 15-07-2021 of the case-file with the Registry, and it was adjourned to 01-04-2021; (5) On 01-04-2021 (for which no notice was served to Appellant) the Hon’ble Bench was held as per the Order dated 28.04.2021 of the ITAT, wherein non-service of notice thereof is admitted; thus, Appellant was unaware about the scheduled Hearing on 1.4.2021; 5.1 As per the impugned Order dated 28.04.2021, it is alleged & wrongly claimed by the postman that : “No such person in the given address ” i.e. someone (?) informed him as if the Appellant did not have the specified 3 MA Nos. 124 to 126/Del/2021 Arpit Goel Vs. ITO address; Copy of the said Notice as well as its Envelope forms part of the case-file at your end; thus, the said impugned notice was not admittedly served to the appellant/assessee; 5.2) In this regard, the Appellant submits that it is not known who reported to the postal authorities that no such person is at the given address; the Appellant further submits that the registered letter (notice) was never tendered to the Appellant; The Appellant has neither refused to receive the notice nor there was willful evasion of such notice; There was no reason for refusal of notice served for hearing the appeal filed by the Appellant; (6) Above all, the then counsels of the Appellant, viz. Advo. R.K.Join who handled the case before the Id. ITQ & Id. CIT(A) demised on 04-11- 2020 and consequently the newly appointed Advo. B.L.Gupta also demised on 25-11-2020 during pandemic period after illnesses of that fatal disease; thus, the Appellant was handicapped & unable during the pandemic environment to appear before the Hon’ble Bench on 01.04.2021; (7) That the circumstances referred to above which led to such postal delays & remarks were absolutely beyond the control of the Appellant and Not due to any default, neglect or laches on the part of the Appellant which led to the passing of the impugned Order on ex-parte basis in the absence of the Appellant; (8) That the Appellant undertakes that the appeals will be pursued sincerely upon the restoration thereof; (9) The appellant/assessee hereby furnishes an Affidavit to the above- submitted facts that the two notices dated 30-07-2020 as well as 19.01.2021 were technically as well as practically not served to him and/or his authorised agent within time; (10) As such for the above stated factual reasons about non-service of the above-referred notices, as also the demise of the authorised counsels {Advo. R.K.Jain as well as Advo. B.L. Gupta), none was able to meet and pursue the captioned notice being lock- downed at address during pandemic conditions in Delhi, thus, the appellant/assessee and/or his aforesaid Counsel was/were unable and could not appear on such scheduled dates of hearing, i.e. 24-08-2020,19.01.2021 & 01.04.2021; (11) Grounds of Appeal vide Form No. 36 (read with those in Form No. 4 MA Nos. 124 to 126/Del/2021 Arpit Goel Vs. ITO 35, which also contain Statement-of-Facts) qua the Orders of the Id. Assessing Officer and of the first appellate authority have been discussed by the impugned order dated 28-04- 2021, however, remained yet to be pleaded with counter-arguments on facts as well as law in the impugned order especially read with the written-submissions by the appellant before the first appellate authority, whereas the rulings of the competent Courts mandate that Doctrine of Natural Justice & Equity would be served only when reasonably adequate opportunity of hearing/s were afforded to the Appellant, which is so laid down by the Apex Court in the following cases : - 31ITR 565 (SC) (1957) Pannalal Binjraj & another vs. Union of India 123 ITR 713 (SC) Kishinchand Chellaram vs. CIT In the background of above-submitted facts of the case, with utmost respect for the Hon’ble Bench, the Assessee/Appellant prays, pursuant to provisions of Rule-24 of the Appellate Tribunal rules, for restoration / recalling / rectification and for re-fixation for hearing of the Order dated 28.04.2021 which was rendered ex-parte, drawing support & strength from the rulings of the Hon’ble Courts in the following cases Kalra Papers Pvt. Ltd. vs. ITO (Delhi HC)( II-12-2020)(WP-C no, 9467/2020) CITvs, P.V. Kumar (2005)(Delhi HC) 199 CTR 429 284 ITR 381 (Delhi HC) (2006) CIT vs. SIEL Ltd. 74 ITR 41 (SC) (1969) CITvs. S. Chenniappa Mudaliar 182 ITR 361 (Delhi HC) (1990) CITvs. K.L.Bhatia 49 Taxman 43 (Delhi HC) (FB) (1990) Smart P. Ltd. vs. ITAT” 3. Learned DR opposed the submissions and submitted that there is no reasonable cause for recalling the order and the Tribunal has passed the order on the merit of the case. Therefore, the application of the assessee deserves to be dismissed. 4. We have heard rival submissions, perused the material on record. One of the reasons for not attending the proceedings is stated to be unfortunate death of the counsels of the applicant, namely, Shri R.K. Jain and Shri B.L. Gupta, who expired 5 MA Nos. 124 to 126/Del/2021 Arpit Goel Vs. ITO due to pandemic on 4.11.2020 and 25.11.2020 respectively. Looking to the facts and circumstances as narrated in the application, seeking recalling of the consolidated order and more particularly to sub-serve the principles of natural justice, we hereby recall our consolidated order dated 28.4.2021 passed in ITA no. 349, 350 & 351/Del/2017 and restore the appeals to their original number. The Registry is directed to fix the hearing of the appeals in due course, after giving notices to both the parties. 6. In the result, all the three misc. applications stand allowed. Order pronounced in open court on 29 th April 2022. Sd/- Sd/- (G.S. PANNU) (KUL BHARAT) PRESIDENT JUDICIAL MEMBER *M P* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI