Shri Vasudev Premjimal Shah, Ahmedabad V. The Income Tax Officer, Ward-1, Aravali

MA 136/AHD/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5545 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 28-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NK GOEL
• Assessee Lawyers: ABHIMANYU SINGH BHATI
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) M.A. NO: 136/AHD/2019 (IN ITA NO. 3018/AHD/2015) (ASSESSMENT YEAR: 2007-08) SHRI VASUDEV PREMJIMAL SHAH 26, RAMPARK SOCIETY, MARKET YARD, MODASA, SABARKANTHA-383315 V/S ITO, WARD-1, MODASA (APPELLANT) (RESPONDENT) PAN: AFNPS 8392H APPELLANT BY : SHRI ABHIMANYU SINGH BHAT I, AR RESPONDENT BY : SHRI N. K. GOEL, SR. D.R. ( )/ ORDER DATE OF HEARING : 04 -10-201 9 DATE OF PRONOUNCEMENT : 09 -10-2019 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. 15-11- 2018 PASSED BY THIS TRIBUNAL. M.A. NO 136/ AHD/2019 . A.Y. 2007-08 2 2. THE LD. AR BEFORE US SUBMITTED AS UNDER: 1. THE ABOVE APPEAL WAS DISMISSED IN LIMINE VIDE ORDER DATED 15 NOVEMBER 2018 AND RELEVANT PARA OF WHICH READS AS UNDER: - '2. THE NOTICE OF HEARING WAS SENT TO THE ASSESSES BY REGISTERED POST AS PER THE ADDRESS GIVEN IN COLUMN NO. 10 OF FORM NO. 36. HOWEVER, AT THE TIME O F HEARING NEITHER ANYBODY APPEARED ON BEHALF OF THE ASSESSEE NOR ANY APPLICATION FOR ADJO URNMENT WAS. FROM THIS, IT IS REASONABLE TO INFER THAT THE ASSESSEE IS NOT SERIOUS TO PURSUE ITS CASE . HON'BLE SUPREME COURT IN THE CASE OF CIT-VS- B.N. BHATTACHARGEE AND ANOTHER, 118 ITR 461(SC) OBSE RVED THAT PREFERRING AN APPEAL MEANS EFFECTIVELY PURSUING IT. HON'BLE M.P. HIGH COURT IN T HE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR- VS-CWT, 223 ITR 480 (M.P.) DISMISSED THE REFERENCE FILED BY THE ASSESSEE FOR NOT TAKING NECESSARY STEPS. SIMILAR VIEW IS TAKEN BY THE I. T.A; DELHI BE NCH IN THE CASE OF MULTIPLAN INDIA LTD; 38 ITD 320. CONSIDERING THE ABOVE, IT APPEARS THAT THE ASSESSEE IS NOT INTERESTED IN PROSECUTING ITS APPEAL. WE, THEREFORE, ARE INCLINED TO DISMISS THE APPEAL FILED BY THE ASSESSEE FOR NON-PROSECUTION. HOWEVER, THE ASSESSEE IS AT LIBERTY TO APPLY FOR THE RECALL OF THE ORDER WITHIN THE PRESCRIBED TIME AFT ER FURNISHING THE SUITABLE REASONS FOR NON-APPEARANCE. HENCE THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. 3. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISMISSED.' 2. THE APPELLANT BEGS TO SUBMIT THIS APPLICATION U/S 2 54(2) OF THE INCOME TAX ACT, 1961 FOR RECTIFICATION OF THE SAID ORDER IN VIEW OF THE FOLL OWING:-. (A) THAT THE APPELLANT WANTED TO PURSUE THE APPEAL BECAUSE HE HAD FILED AN APPEAL AGAINST THE ORDER OF THE ID. C.I.T.(APPEALS) AFTER PAYMENT OF RS.2,63 0/- AS APPEAL FEE AND HAD ALSO APPOINTED M/S BHATI &. ASSOCIATES, ADVOCATES, AHMEDABAD TO REPRESENT HIS MATTER BEFORE THE HON'BLE TRIBUNAL. (B) THAT THE NOTICE RELATING TO FIXING THE DATE OF HEARING ON 15.11.2018 WAS RECEIVED AT THE ADDRESS OF M/S BHATI & ASSOCIATES, AHMEDABAD ON 12.11.2018. AT THAT PARTICULAR TIME HOWEVER, SHRI UMAID SINGH BHATI, ADVOCATE WAS IN JAIPUR ALONG WITH SHRI ABHIMANYU SINGH BHATI, ADVOCATE, AS HIS FATHER HAD EXPIRED ON 10.11.2018. MOREOVER, THEIR OFFICE WAS ALSO CLOSED, BEING DIWALI VACATIONS TILL 22.11.2018, AND THE PEON, WHO HAD RE CEIVED THE NOTICE, COULD NOT RELAY THE NOTICE ABOUT THE ABOVE REFERRED HEARING. IN VIEW OF THIS, NEITHER SHRI UMAID SINGH BHATI NOR SHRI M.A. NO 136/ AHD/2019 . A.Y. 2007-08 3 ABHIMANYU SINGH BHATI, WERE NOT ABLE TO APPEAR FOR T HE HEARING ON 15.11.2018. HOWEVER, LATER ON, WHEN THEY CONTACTED THE REGISTRY, THEY CAME TO KNOW THAT HEARING HAS ALREADY TAKEN PLACE. (C) AS PER SETTLED POSITION OF THE LAW, AN ASSESSEE SHOULD NOT SUFFER BECAUSE OF MISTAKE OF HIS COUNSEL . (D) HON'BLE GUJARAT HIGH COURT IN THE CASE OF SANKET ESTATE &. FINANCE (P) LIMITED V/S CIT [2013] 32 TAXMANN.COM 342 (GUJ) HAS HELD THAT THE T RIBUNAL CANNOT DISMISS AN APPEAL FOR WANT OF PROSECUTION, WITHOUT SAME BEING DECIDED ON MERIT . 3. IN THE ABOVE CIRCUMSTANCES, IT IS RESPECTFULLY SUBM ITTED THAT THE HON'BLE TRIBUNAL MAY BE PLEASED TO ADMIT THIS MISCELLANEOUS APPLICATION IN ORDER TO RE CALL ITS EARLIER ORDER IN THE LIGHT OF THE ABOVE FA CTS. 4. CHALLAN OF RS.50/- DATED 16.01.2018 BEING MISCELLA NEOUS APPLICATION FEE IS ENCLOSED HEREWITH. 5. AS THE IMPUGNED ORDER WAS PRONOUNCED ON 15.11.2018, THIS MISCELLANEOUS APPLICATION IS IN TIME U/S 254(2) OF THE INCOME TAX ACT, 3. ON THE OTHER HAND THE LD. DR RAISED NO OBJECT ION 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. 15-11-2018, WE FIND THAT IN SPITE OF SERVICE OF NOTICES BY THE REGISTRY NEITHER ANY ONE APPEARED NOR THERE WAS ANY ADJOURNMENT APPL ICATION FILED ON BEHALF OF ASSESSEE FOR THE HEARING ON 15-11-2018. THUS, FOLLO WING 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 DISMIS SED THE APPEAL OF ASSESSEE BY PASSING EX PARTE ORDER FOR NON PROSECUT ION. WE FIND THAT THERE WAS SUFFICIENT REASON FOR THE ASSESSEE IN NOT APPEARING BEFORE THE TRIBUNAL ON THE SAID DATE OF HEARING [15-11- 2018]. THEREFORE, IN V IEW OF SUBMISSION OF ASSESSEE WE RECALL THE ORDER DATED 15-11-2018 BY ALLOWING TH IS MISC. APPLICATION FILED BY THE ASSESSEE. M.A. NO 136/ AHD/2019 . A.Y. 2007-08 4 5. NEXT DATE OF HEARING IN THIS MATTER IS 19/11/2 019 AND SAME HAS BEEN COMMUNICATED TO BOTH THE PARTIES AND NO SEPARATE NO TICE WILL BE SENT TO ANY OF THE PARTIES. 6. IN THE RESULT, THE MISC. APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 09- 10- 2019 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUD ICIAL MEMBER AHMEDABAD: DATED 09 /10/2019 RAJESH 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 ITAT,AHME DABAD