M/S. Aastha Vincom Pvt. Ltd., Kolkata V. DCIT, CC-XIX, Kolkata, Kolkata

MA 13/KOL/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3870 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 10-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH: KOLKATA [Before Shri Rajesh Kumar, Accountant Member & Shri Sonjoy Sarma, Judicial Member] MA No. 13/Kol/2022 (Arising out of I.T.A. No. 123/Kol/2015 Assessment Year : 2008-09 M/s Aastha Vincom Pvt. Ltd. (PAN: AAGCA 7495 J) Vs. DCIT, CC-XIX, Kolkata Appellant Respondent Date of Hearing 06.06.2022 Date of Pronouncement 20.06.2022 For the Appellant Shri S.K. Tulsiyan, Advocate For the Respondent Shri Ranu Biswas, Addl. CITDR ORDER Per Shri Rajesh Kumar, AM: By virtue of this miscellaneous application, the assessee seeks recalling of the ex-parte order passed by the Co-ordinate Bench in ITA No. 123/Kol/2015, AY 2008- 09 dated 04.09.2017. 3. The Ld. Counsel for the assessee Shri S.K. Tulsiyan submitted before the Bench that the date of hearing of the appeal 4.9.2017 could not be communicated to the assessee as the assessee has shifted from earlier address at 97C, Muktaram Babu Street, Kolkata-700007 to its present address at 21, C.R.Avenue, White House, LIC Building, 1 st Floor, Kolkata-700072. The Ld. Counsel of the assessee also submitted that the appeal was being handled by the Chartered Accountant of the assessee and the assessee is totally unaware of the date of the hearing and also the ex-parte order passed by the Tribunal. The Ld. Counsel for the assessee submitted that the non- appearance on the date of hearing cannot be attributed to the failure of the assessee as it was a negligence on the part of the chartered Accountant of the assessee who was handling the tax matters. The Ld. Counsel for the assessee has submitted that the assessee vide letters dated 1.04.2021 and 2.5.2022 has intimated the change of address to the Registry of the Tribunal and also sought information qua the status of 2 MA No.13/Kol/2022 (Arising out of ITA No. 123/Kol/2015 AY: 2008-09 Aastha Vincom (P) Ltd. the appeal filed on 19.11.2014. The Ld. Counsel for the assessee submitted that the assessee was told that appeal has been decided ex-parte. Thereafter the assessee requested for the certified copy of the order which was provided to the petitioner on 6.5.2022. The ld Counsel submitted that thereafter the assessee filed miscellaneous application u/s 254(2) read with Rule 24 of the Income Tax Appellate Tribunal Rules, 1963 praying for recalling the ex-parte order passed in above said appeal. The ld. Counsel for the assessee submitted that the miscellaneous application has been filed well within the time of six months from the date of receipt of certified copy of the order on 6.5.2022. The Ld. Counsel for the assessee also referred to the amendment made in Section 254(2) of the Act by the Finance Act, 2016 w.e.f. 1.6.2016 providing for that the Tribunal may, at any time within six months form the end of the month in which the order was passed, amend any order passed under sub- section (1) and shall make such amendment if such mistake is brought to the notice by the assessee or by the AO. The Ld. Counsel for the assessee submitted that the said amendment to the Act has been interpreted by the Mumbai Bench of the Tribunal in the case of Pawan Kumar Jain vs. DCIT, reported in [2013] 155 TTJ 14 (Mum)/ 89 DTR 33 (Mum) in which the Co-ordinate Bench has held that the date of the order should be construed as the date of knowledge of the order. The Ld. Counsel for the assessee therefore submitted that the miscellaneous application has been filed by the assessee well within six months from the date of communication of the order i.e. 6.5.2022 and therefore the miscellaneous application is well within the time and not barred by limitation. The Ld. Counsel for the assessee also drew attention of the Bench to the fact that the appeal of the assessee was dismissed by the coordinate bench relying on the decision in the case of CIT vs. Multiplan India (Pvt.) Ltd. in 38 ITD 320 (Del) for non-appearance of the assessee on the date of hearing without discussing the merit at all which is in violation of the ratio laid down the Hon’ble Bombay High Court in the case of Bharat Petroleum Corporation Ltd. vs. ITAT [2013] 359 ITR 371 (Bom), after considering the decision of Hon’ble Supreme Court in the case of CIT vs. S. Cheniappa Mudaliar [1969] 74 ITR 41 (SC), that the mandate 3 MA No.13/Kol/2022 (Arising out of ITA No. 123/Kol/2015 AY: 2008-09 Aastha Vincom (P) Ltd. of Section 254(1) of the Act is to dispose off the appeal on the merit even in the absence of the assessee. The Ld. Counsel for the assessee also referred to the decision of Hon’ble Gauhati High Court in the case of Rajendra Prasad Borah vs. ITAT [2008] 302 ITR 243 (Gau) interpreting the Rule 24 of the Income Tax appellate Tribunal Rules, 1963 in which it was held that the Tribunal has no empower to dismiss the appeal for the default of the assessee to appear on the strength of ratio laid down by Hon’ble Apex Court in the case of CIT vs. S. Cheniappa Mudaliar (supra). The Ld. Counsel for the assessee, therefore, prayed before the Bench that the ex-parte order passed without discussing the merit, may kindly be recalled and we posted for hearing in the month of July so that justice is done to the assessee. 4. The Ld. DR, on the other hand, strongly opposed the contentions and arguments of the counsel of the assessee on the ground that the assessee has failed to explain the reasons for non-appearance on 4.9.2017 and therefore the miscellaneous application of the assessee is not maintainable in absence of plausible and reasonable explanation for non-appearance of the assessee. In the rejoinder, the ld. Counsel for the assessee referred to Affidavit filed by the assessee and submitted that the reasons have been adequately explained therein as to how the assessee could not appear on 4.9.2017 and therefore the arguments of the Ld. Sr. D.R has no force. 5. After hearing the rival contentions and perusing the material on record, we find that the appeal of the assessee has been decided ex-parte by the Tribunal on 4.9.2017 vide even dated order. We note that the Co-ordinate Bench has passed the ex parte order by following the decision in the case of CIT vs. Multiplan India (Pvt.) Ltd. in 38 ITD 320 (Del). We further note that while disposing the appeal the Co- ordinate Bench has not touched the merits of the case at all. Coming to the maintainability of the miscellaneous application, we note that the assessee was provided a certified copy of the order dated 4.9.2017 passed in ITA No. 123/Kol/2015 on 6.5.2022 by the Registry and the assessee filed miscellaneous application on 11.05.2022 u/s 254(2) r.w.r. Rule 24 of the Income Tax Appellate Tribunal Rules, 4 MA No.13/Kol/2022 (Arising out of ITA No. 123/Kol/2015 AY: 2008-09 Aastha Vincom (P) Ltd. 1963 for restoration of appeal after recalling the said ex-parte order. We have perused the provisions of Section 254(2) of the Act as amended by the Finance Act, 2016 w.e.f 1.6.2016 in the light of the ratio laid down by the Co-ordinate Bench in the case of Pawan Kumar Jain (supra) and are inclined to hold that the assessee has filed miscellaneous application within six months from the date of communication of the order on 6.5.2022 when the assessee was provided a certified copy of the order by the Registry of the Tribunal. The case of the assessee also finds support from the decision of Hon’ble Bombay High Court in the case of Bharat Petroleum Corporation Ltd. (supra) wherein the Bombay High Court by applying the ratio as laid during the Hon’ble Apex Court in CIT vs. S.Cheniappa Mudalia (supra) held that the mandate of Section 254(1) of the Act is to dispose of the appeal on merit even if the assessee does not appear on the date of hearing. Similarly the ratio has been laid down by the Hon’ble Gauhati High Court in the case Rajendra Prasad Borah (supra) wherein the Hon’ble High Court while interpreting Rule 24 of the ITAT Rules, 1963, after following the ratio laid down by the decision of Hon’ble Apex Court in the case of CIT vs. S.Cheniappa Mudalia (supra), held that it is incumbent upon the Tribunal to dispose off the appeal on merit and Rule 24 as it stands, per se does not empower the Tribunal to dismiss the appeal for default in absence of the assessee. The Hon’ble Court has further held that reliance of the Tribunal on the decision of Co-ordinate Bench of the Delhi Tribunal in the case of CIT vs. Multiplan India Pvt. Ltd. in [1991] 38 ITD 320 (Del) is wrong and mis-placed. Accordingly considering the facts of the case and ratio laid down in the various decisions as discussed above, we hereby recall the order dated 4.9.2017 passed by the Co-ordinate Bench and direct the Registry to post the same for hearing before the regular bench on 13.7.2022. 5 MA No.13/Kol/2022 (Arising out of ITA No. 123/Kol/2015 AY: 2008-09 Aastha Vincom (P) Ltd. 6. In the result, the miscellaneous application of the assessee is allowed. Order is pronounced in the open court on 20 th June, 2022 Sd/- Sd/- (Sonjoy Sarma) (Rajesh Kumar) Judicial Member Accountant Member Dated: 20 th June, 2022 SB, Sr. PS Copy of the order forwarded to: 1. Appellant- M/s Aastha Vincom Pvt. Ltd., 97C, Muktaram Babu Street, Kolkata-700007. New address at 21, C.R. Avenue, White House, LIC Building, Kolkata-7000072. 2. Respondent – DCIT, CC-XIX, Kolkata 3. The CIT(A)- 21, Kolkata (Sent through e-mail) 4. Pr. CIT- Kolkata 5. DR, Kolkata Benches, Kolkata (sent through e-mail) True Copy By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata