Shri Oswal Kirti Ratanchand,Prop. A-One Oil Indsutries, Pune V. ITO, Pune

MA 137/PUN/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5794 (ITAT-PUNE)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-10-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2002-2003
• Appeal Filed On: 16-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH PUNE BEFORE SHRI SHAILENDRAKUMAR YADAV AND SHRI D. KARUNAKARA RAO MA NO. 137/PN/10 (ARISING OUT OF ITA NO. 1853/PN/05 ) A.Y 2002-03 SHRI OSWAL KIRTI RATANCHAND, PROP. A-ONE OIL INDUSTRIES, PUNE PAN NO. AADPO8268K .... APPELLANT VS. ITO WARD 2(3) PUNE . RESPONDENT APPELLANT BY : SMT. DEEPA KHARE RESPONDENT BY : SHRI A.S. SINGH ORDER PER D. KARUNAKARA RAO AM THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE HAS BEEN FILED ON 16/07/2010, ARISING OUT OF THE TRIBUNAL ORDER BEARING IT A NO. 1853/PN/05. THROUGH THIS MISCELLANEOUS APPLICATION, THE ASSESSEE HAS PRAYED FOR RECALLING AN EX-PARTE ORDER OF THE TRIBUNAL DATED 08 TH NOVEMBER,2007 DISMISSED IN LIMINE ON THE GROUND OF NON-APPEARANCE ON BEHALF OF THE APPELLA NT AND THE SHORT PRAYER OF THE PETITIONER IS FOR GRANTING FRESH HEARING AND DISPOS AL OF THE APPEAL ON MERITS. 2. LEARNED COUNSEL MRS. DEEPA KHARE, APPEARED FOR THE PE TITIONER AND STATED THAT THE MISCELLANEOUS APPLICATION HAS BEEN MOVED B Y THE APPLICANT-ASSESSEE FOR THE REASONS MENTIONED IN THE PETITIONS, RELEVANT PARAG RAPH OF WHICH IS REPRODUCED BELOW:- THE DATE OF HEARING ON 30.10.2007 WAS THE FIRST DATE OF HEARING FOR THE ABOVE APPEAL. THE NOTICE THOUGH WAS RECEIVED IN TIME, THERE WA S A COMMUNICATION GAP BETWEEN THE APPELLANT AND HIS CONSULTANT. THE APPEAL FOR SUBSEQUENT YEAR WAS ALSO PENDING BEFORE THE HON TRIBUNAL I.E. FOR A.Y 2003- 04 VIDE ITA NO. 34/PN/07. THE APPELLANT REQUESTED THE HON TRIBUNAL TO FIX BOTH THE APPEALS FOR HEARING AS THE ISSUE INVOLVED WAS COMMON OR IDENTICAL. THE APPELLANT W AS NOT AWARE THAT THE APPEAL FOR THE FIRST YEAR I.E. 2002-03 IS ALREADY DIS MISSED BY THE HON TRIBUNAL EX-PARTE FOR NON-ATTENDANCE. THE ORDER OF DISMISSAL HA S NOT BEEN RECEIVED BY THE APPELLANT. IT WAS ONLY WHEN I.E. ON 11.06.2010 THE ORD ER OF EARLIER YEAR OF DISMISSAL WAS GIVEN TO THE ASSESSEES REPRESENTATIVE MRS . DEEPA KHARE WHICH WAS A COPY OF LEARNED DEPARTMENTAL REPRESENTATIVE, THE APPELLANT CAME TO KNOW THAT THE APPEAL FOR FIRST YEAR HAS BEEN DISMISSED. UNFO RTUNATELY, THE APPELLANTS MOTHER EXPIRED ON 10.6.2010. IT WAS DIFFICULT FOR THE APPELLANTS CONS ULTANT TO COMMUNICATE WITH THE APPELLANT REGARDING THE ISSUE AND TH EREFORE THE MISCELLANEOUS APPLICATION IS BEEN FILED NOW. MA NO.137/PN/10 ARISING OUT OF ITA NO. 1853/PN/05 A.Y. 2002-03 PAGE 2 OF 2 3. WE HAVE HEARD THE LEARNED D.R. SHRI A.S. SINGH. ON CONSIDERATION OF THE MATERIAL PLACED BEFORE US AND IN VIEW OF THE FACTUAL POSITION REFERRED IN ABOVE PARAGRAPH, WE ARE SATISFIED THAT THERE WAS SUFFICIENT RE ASON FOR NON-APPEARANCE BY THE ASSESSEE ON THE DATE OF HEARING BEFORE THE TRI BUNAL. WE FIND FORCE IN THE MISCELLANEOUS APPLICATION SINCE THE APPEAL HAS BEEN DISMISSED IN LIMINE , ADMITTEDLY DUE TO NON-APPEARANCE OF THE APPELLANT. M OREOVER, RULE 24 OF ITAT RULES ALSO PROVIDED THAT WHERE AN APPEAL HAS BEEN DISP OSED OF DUE TO NON- APPEARANCE OF THE APPELLANT AND SUBSEQUENTLY, IT WA S FOUND THAT THERE WAS SUFFICIENT CAUSE FOR THE SAID NON-APPEARANCE, THE TRIB UNAL SHALL MAKE AN ORDER SETTING ASIDE EXPARTE ORDER AND RESTORING THE APPEAL. I N VIEW OF THIS, WE HEREBY RECALL OUR ORDER DT. 08 TH NOVEMBER,2007, REFERRED HEREINABOVE AND FIX THE DATE OF HEARING, OUT OF TURN ON 08/11/2010 . THOUGH THE DATE OF HEARING IS PRONOUNCED AND DULY COMMUNICATED IN THE COURT BUT STILL THE REG ISTRY IS DIRECTED TO ISSUE NOTICE OF HEARING TO THE PARTIES ACCORDINGLY. THE APP ELLANT IS ALSO DIRECTED NOT TO SEEK FRIVOLOUS ADJOURNMENT AND ADOPT ALL REASONABLE ST EPS TO GET THE APPEAL FINALIZED AT AN EARLY DATE. 4. IN THE RESULT, THE MA OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED ON 08 TH OCTOBER, 2010. SD/- SD/- (SHAILENDRAKUMAR YADAV) (D.KARUNAKAR A RAO) JUDICIAL MEMBER ACCOUNTANT MEMBE R PUNE DATED THE 08 TH OCTOBER, 2010 R COPY OF THE ORDER IS FORWARDED TO : 1. ASSESSEE 2. ITO, WARD 2(3), PUNE 3. CIT(A)-II, PUNE 4. CIT-II, PUNE 5. D.R. ITAT PUNE BENCH, PUNE BY ORDER ASSISTANT REGISTRAR I.T.A.T PUNE