M/s. Om Surya Electonic P. Ltd, Hyderabad V. ACIT, Circle-16(3), Hyderabad

MA 128/HYD/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7233 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-10-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 18-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T DIWAKAR PRASAD
• Assessee Lawyers: C P RAMASWAMY
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A ', HYDERABAD BEFORE SHRI G.C.GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER MISC. APPLN. NO.128/HYD/2011 (IN ITA NO.1313/HYD/10) : ASSTT. YEARS 2006-07 M/S. OM SU R YA ELECTRONICS P. LTD., HYDERABAD ( PAN - AAACO 2385 D ) V/S. ASST. COMMISSIONER OF INCOME - TAX, CIRCLE-16(3), HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI C.P.RAMASWAMY RESPONDENT BY : SHRI T. DIWAKAR PRASAD DATE OF HEARING 30.9.2011 DATE OF PRONOUNCEMENT 14.10.2011 O R D E R PER G.C.GUPTA, VICE PRESIDENT: BY THIS MISCELLANEOUS APPLICATION, ASSESSEE HAS R EQUESTED FOR RECALLING OF THE EX-PARTE ORDER OF THE TRIBUNAL DAT ED 3.6 . 2011 IN THE REVENUES APPEAL, BEING ITA NO1313/HYD/2010, FOR TH E ASSESSMENT YEAR 2006-07 IN THE CASE OF THE ASSESSEE. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE MISCELLANEOUS APPLICATION HAS BEEN FILED IN TERMS O F PROVISO TO RULE 25 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, WH ICH PROVIDES THAT WHEN THE APPLICATION UNDER PROVISO TO RULE 25 IS FILED B Y THE ASSESSEE, THE TRIBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE EX- PARTE ORDER AND RESTORE THE APPEAL. HE SUBMITTED THAT THE MANAGING DIRECTO R OF THE ASSESSEE COMPANY, SHRI SUNIL JAIN, HAS FILED AN AFFIDAVIT DA TED 7.7.2011 BEFORE THE TRIBUNAL STATING THAT THE ASSESSEE HAS ENGAGED THEI R COUNSEL, SHRI C.P.RAMASWAMY, TO APPEAR ON THEIR BEHALF IN THE AFO RESAID APPEAL AND FORWARDED TO HIM THE NOTICE OF HEARING ON 25.5.2011 AND EXPECTED THAT THE M.A.128/HYD/2011(ITA NO.1313/HYD/2010} M/S. OM SURYA ELECTRONICS P. LTD., HYDERABAD 2 COUNSEL WOULD APPEAR ON THAT DATE. LATER, HE CAME TO KNOW THAT HE (SHRI RAMASWAMY) HAD GONE TO VISAKHAPATNAM ON PRIOR PROF ESSIONAL COMMITMENT, AND CONSEQUENTLY, THE APPEAL WAS HEARD EX-PARTE. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT TH IS CONSTITUTES SUFFICIENT CAUSE FOR NOT APPEARING BEFORE THE TRIBUNAL ON THE DATE OF HEARING AND THEREFORE, THE EX-PARTE ORDER OF THE TRIBUNAL MAY B E SET ASIDE AND THE APPEAL OF THE REVENUE MAY BE RESTORED FOR FRESH DE CISION ON MERITS. HE REFERRED TO PARAS 3 AND 4 OF THE STATEMENT OF FACTS FILED BEFORE THE CIT(A) BY THE ASSESSEE. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS O PPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE . HE SUBMITTED THAT THERE WAS CLEAR VIOLATION OF THE PROVISION OF RULE 46A OF THE INCOME TAX RULES, 1962 IN THIS CASE, AS THE CIT(A) HAS ADMITTE D ADDITIONAL EVIDENCE WITHOUT GIVING ANY OPPORTUNITY TO THE ASSESSING OFF ICER TO EXAMINE THE SAME AND TO SUBMIT A REMAND REPORT WITH REGARD THERETO. HE SUBMITTED THAT THE ASSESSEE COULD NOT SHOW ANY SUFFICIENT CAUSE FOR IT S NON-APPEARANCE, WHEN THE APPEAL WAS CALLED FOR HEARING BEFORE THE TRIBUN AL. IT HAS TAKEN NO STEPS AT LEAST TO SEEK AN ADJOURNMENT IN CASE THE COUNSEL OF THE ASSESSEE WAS NOT AVAILABLE AT HYDERABAD ON THE DATE OF HEARING. HE SUBMITTED THAT THE PROVISO TO RULE 25 OF THE INCOME TAX (APPELLATE TRI BUNAL) RULES, 1963 DOES NOT APPLY TO THE FACTS OF THE CASE. 4. IN THE REJOINDER, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PROVISO TO RULE 25 OF THE INCOME TAX (APPE LLATE TRIBUNAL) RULES 1963 PROVIDES FOR RECALLING THE EX-PARTE ORDER AND SINCE THE COUNSEL WAS AWAY AT VISAKHAPATNAM, IT CONSTITUTES SUFFICIENT CA USE FOR NON-APPEARANCE ON THE DATE OF HEARING. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFU LLY AND HAVE PERUSED THE CONTENTS OF THE MISCELLANEOUS APPLICATI ON FILED BY THE ASSESSEE M.A.128/HYD/2011(ITA NO.1313/HYD/2010} M/S. OM SURYA ELECTRONICS P. LTD., HYDERABAD 3 AND THE ACCOMPANYING AFFIDAVIT OF THE MANAGING DIRE CTOR OF THE ASSESSEE- COMPANY. WE FIND THAT THE PROVISO TO RULE 25 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 NO-WHERE PROVIDES THAT THE TR IBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE EX-PARTE ORDER AND RESTORIN G THE APPEAL IN CASE THE ASSESSEE HAS FILED APPLICATION UNDER PROVISO TO RUL E 25. RULE 25 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 ALONGWI TH ITS PROVISO IS REPRODUCED HEREUNDER- 25. WHERE, ON THE DAY FIXED FOR HEARING OR ANY OTH ER DAY TO WHICH THE HEARING MAY BE ADJOURNED, THE APPELLANT APPEAR S AND THE RESPONDENT DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORIZED REPRESENTATIVE WHEN THE APPEAL IS CALLED ON FOR HEARING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE APPELLANT; PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVIDED ABOVE AND THE RESPONDENT APPEARS AFTERWARD S AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CA USE FOR HIS NON-APPEARANCE WHEN THE APPEAL WAS CALLED ON FOR HE ARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE EX PARTE ORDER AND RESTORE THE APPEAL. WE FIND THAT NO SUFFICIENT CAUSE FOR NON-APPEARANCE ON BEHALF OF THE ASSESSEE ON THE DATE OF HEARING BEFORE THE TRIBUNAL COULD BE ESTABLISHED BY THE ASSESSEE IN THIS CASE. THE AFFIDAVIT DATED 7.7 .2011 OF SHRI SUNIL JAIN, MANAGING DIRECTOR OF THE ASSESSEE COMPANY HAS STATE D THAT THEY HAD ENGAGED THE COUNSEL, SHRI C.P.RAMASWAMY, TO APPEAR ON THEIR BEHALF IN THE APPEAL BEFORE THE TRIBUNAL AND FORWARDED TO H IM THE NOTICE OF HEARING ON 25.5.2011 AND EXPECTED THEIR COUNSEL TO APPEAR O N THE DATE OF HEARING. LATER ON, THEY CAME TO KNOW THAT THE COUNSEL HAS GO NE TO VISAKHAPATNAM ON PRIOR PROFESSIONAL COMMITMENT AND CONSEQUENTLY, THE APPEAL WAS HEARD EX-PARTE. WE FIND THAT NO STEPS WERE TAKEN BY THE A SSESSEE OR ITS COUNSEL TO SEEK AT LEAST AN ADJOURNMENT ON THE DATE OF HEA RING BEFORE THE TRIBUNAL, ALTHOUGH THE PRIOR PROFESSIONAL COMMITMENT OF THE COUNSEL WAS WELL WITHIN THEIR KNOWLEDGE. NO REASON WHATSOEVER HAS BEEN SHOW N IN THE MISCELLANEOUS APPLICATION OR IN THE ACCOMPANYING AF FIDAVIT OF THE MANAGING DIRECTOR OF THE ASSESSEE COMPANY FILED BEFORE US TO SHOW THAT THERE WAS ANY M.A.128/HYD/2011(ITA NO.1313/HYD/2010} M/S. OM SURYA ELECTRONICS P. LTD., HYDERABAD 4 SUFFICIENT CAUSE FOR NON-APPEARANCE OR NON-FILING O F EVEN ADJOURNMENT APPLICATION ON THE DATE OF HEARING BEFORE THE TRIBU NAL. WE FIND THAT THE CIT(A) HAS RECORDED IN HIS APPELLATE ORDER THAT HE HAS ACCEPTED ADDITIONAL EVIDENCE FILED BY THE ASSESSEE, AGAINST WHICH THE REVENUE HAS SPECIFICALLY RAISED 4 (FOUR) GROUNDS OF APPEAL BEFORE THE TRIBU NAL AND THE ASSESSEE- RESPONDENT HAS NOT RAISED ANY CROSS OBJECTION TO IT . WE FIND THAT THE TRIBUNAL IN ACCORDANCE WITH RULE 25 OF THE INCOME T AX (APPELLATE TRIBUNAL) RULES HAS PASSED THE ORDER ON MERITS AFTER HEARING THE APPELLANT(THE REVENUE) AND SINCE THE CIT(A) HAS ADMITTED ADDITIO NAL EVIDENCE WITHOUT GIVING ANY OPPORTUNITY TO THE ASSESSING OFFICER T O EXAMINE THE SAME OR SUBMIT A REMAND REPORT WITH REGARD THERETO, HAS SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND REMITTED THE MATTER BACK TO T HE FILE OF THE ASSESSING OFFICER TO FRAME A DE NOVO ASSESSMENT IN ACCORDAN CE WITH LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. WE FIND THAT THE ASSESSEE HAS BEEN FURTHER GIVEN OPPORTUNITY TO FILE EVIDENCE IN SUPPORT OF ITS CLAIM FOR ALLOWANCE OF EXPENSES AND DEDUCTIO NS BEFORE THE ASSESSING OFFICER, AND THEREFORE, IN OUR VIEW, NO PREJUDICE I S CAUSED TO THE ASSESSEE. IN THESE FACTS OF THE CASE, WE HOLD THAT SINCE THER E WAS NO SUFFICIENT CAUSE FOR NON-APPEARANCE ON BEHALF OF THE ASSESSEE ON THE DATE OF HEARING BEFORE THE TRIBUNAL, THE MISCELLANEOUS APPLICATION PREFERR ED BY THE ASSESSEE HAS NO MERIT, AND IT IS ACCORDINGLY REJECTED. 6. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS REJECTED. ORDER PRONOUNCED IN THE COURT ON 14.10.2011 SD/- SD/- (CHANDRA POOJARI) (G.C.GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DT/- OCTOBER, 2011 M.A.128/HYD/2011(ITA NO.1313/HYD/2010} M/S. OM SURYA ELECTRONICS P. LTD., HYDERABAD 5 COPY FORWARDED TO: 1. M/S. OM SU R YA ELECTRONICS P. LTD., 16 MODEL HOUSE, PANJAGUTTA, HYDERABAD 2. ASST COMMISSIONER OF INCOME - TAX, CIRCLE - 16(3) , HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) - V HYDERABAD 4. COMMISSIONER OF INCOME TAX - IV, HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S.