M/s Shree Jewellers, Chandigarh V. Pr.CIT-1, Chandigarh

MA 138/CHANDI/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 3797 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 07-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Reasonable cause; Corroborative evidences
• Section: 274; 254(2); 263; 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B CHANDIGARH !, ' # $ , $ % & ' ( ) , *+ # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM M.A. NO. 138/CHD/2018 IN ./ ITA NO. 293/CHD/2017 / ASSESSMENT YEAR : 2012-13 M/S SHREE JEWELLERS, SCO 5, SECTOR 19-D, CHANDIGARH. VS THE PR. CIT-I, CHANDIGARH. ./ PAN NO: AAXFS8977P / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI AJAY JAIN, CA # ! ' / REVENUE BY : SHRI MANJIT SINGH, CIT-DR $ % ! &/ DATE OF HEARING : 26.07.2019 '()* ! &/ D ATE OF PRONOUNCEMENT : 13.08.2019 *,/ ORDER PER DIVA SINGH BY THE PRESENT APPLICATION FILED U/S 254(2) OF THE INCOME TAX ACT,1961 THE ASSESSEE PRAYS FOR A RECALL OF THE EX- PARTE ORDER DATED 09.05.2018 WHEREIN THE ASSESSEE'S APPEAL WAS DISMIS SED IN-LIMINE FOR NON REPRESENTATION. 2. THE LD. AR INVITING ATTENTION TO THE APPLICATION ON RECORD AND THE AFFIDAVIT OF THE DIRECTOR OF THE ASSESSEE FIRM MR.S UNISH SINGLA SUBMITTED THAT ON THE STATED DAY WHEN THE APPEAL OF THE ASSESSEE WAS DISMISSED, THE ASSESSEE HAD MOVED AN ADJOURNMENT AP PLICATION ON THE GROUND THAT THE RELEVANT DOCUMENTS WERE NOT AVAILAB LE WITH THE M.A. 138/CHD/2018 IN ITA 293/CHD/2017 A.Y. 2012-13 PAGE 2 OF 6 ASSESSEE WHICH HAD TO BE COMPILED FOR FILING A PAPE R BOOK. IT WAS AGREED THAT ON THE SAID GROUNDS THE ASSESSEE HAD SO UGHT MANY ADJOURNMENTS RIGHT FROM APRIL,2017. THE REQUEST WA S REPEATED ON 07.05.2018 AND ON THE SAID DATE THE REQUEST WAS NOT ACCEPTED. IT WAS HIS PRAYER THAT NOW ALL THE DOCUMENTS WERE AVAILABL E, ACCORDINGLY THE EX-PARTE ORDER MAY BE RECALLED. INVITING ATTENTION TO PARAGRAPH 10 OF THE MISCELLANEOUS APPLICATION IT WAS SUBMITTED THAT THOUGH THE DIRECTOR HAS STATED; THAT WE PARTNERS OF FIRM HEREBY UNDERTAKE TO FILE THE PAPER BOOK IMMEDIATELY AFTER RECALLING THE ABOV E STATED ORDER BY HON'BLE ITAT. HOWEVER, BY WAY OF AN AFFIDAVIT FILED BY THE DIRECT OR, IT HAS BEEN STATED THAT THE PAPER BOOK IS READY. FOR THE SAID PURPOSES, ATTENTION WAS ALSO INVITED TO THE AFFIDAVIT DATED 2 5.07.20129 OF SHRI SUNISH SINGLA WHEREIN IT HAS BEEN CATEGORICALLY STA TED; THAT I HEREBY ENSURE THAT PAPER BOOK IS READY AND WE SHALL FILE W ITHIN THREE DAYS AFTER RECALLING THE EX-PARTE ORDER. 2.1 ACCORDINGLY, IT WAS HIS PRAYER THAT THE ASSESSE E IS SERIOUS IN PURSUING THE APPEAL FILED AND IS NOW IN A POSITION TO ARGUE ITS APPEAL WHEREIN ORDER DATED 16.12.2016 OF PR. CIT CHANDIGAR H PASSED U/S 263 OF THE ACT HAS BEEN ASSAILED. THE IMPUGNED ORDER DI SMISSING THE ASSESSEE'S APPEAL IN LIMINE IT WAS HIS PRAYER MAY B E RECALLED. 3. THE LD. CIT-DR MR. MANJIT SINGH ON CONSIDERATION OF THE FACTS SUPPORTED BY AFFIDAVIT OF THE DIRECTOR POSED NO OBJ ECTION TO THE RECALL OF THE EX-PARTE ORDER DATED 09.05.2018. M.A. 138/CHD/2018 IN ITA 293/CHD/2017 A.Y. 2012-13 PAGE 3 OF 6 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT THE ASSESSEE'S APPEAL ASSAILING THE CORRECTNESS OF THE ORDER U/S 263 DATED 16.12.2016 O F PR. CIT, CHANDIGARH IN VIEW OF FREQUENT ADJOURNMENTS MOVED O VER THE YEARS WAS ULTIMATELY DISMISSED IN LIMINE ON 07.05.2018 B Y AN ORDER DATED 09.05.2018. AS PER CONVENTION, THE APPEALS AGAINST THE ORDERS U/S 263 ARE GIVEN A PRIORITY. IN THE FACE OF THE REPEA TED ADJOURNMENTS, THE APPEAL WAS DISMISSED IN LIMINE AS THE REPEATED REQU EST FOR TIME DEMONSTRATED THE REPEATED RELUCTANCE OF THE ASSESSE E TO ADVANCE ARGUMENTS IN ITS APPEAL. THE ITAT DOES HAVE THE PO WER TO LEVY COSTS IN ORDERS TO REIGN IN A RELUCTANT AND HABITUAL ADJO URNMENT SEEKER HOWEVER, THESE POWERS ARE RESORTED TO IN THE RAREST OF THE RARE CASES. HOWEVER, IN ORDER TO ADDRESS THE ABUSE OF THE SYSTE M BY FRIVOLOUS LITIGANTS WHO AFTER FILING OF THE APPEAL CHOOSE TO TAKE CHANCES BEFORE DIFFERENT FORUMS, IT HAS BEEN FOUND EXPEDIENT TO DI SMISS SUCH APPEALS IN LIMINE. BY WAY OF SUCH ORDERS, ITAT HAS BEEN AB LE TO ENSURE ATTENDANCE OF THE APPELLANT WHO IS SERIOUS IN PROSE CUTING THE APPEAL FILED. IN THE FACTS OF THE PRESENT CASE, CONSIDERI NG THE ARGUMENTS ADVANCED WHICH HAVE BEEN ADDRESSED HEREINABOVE AND THE SUPPORTING EVIDENCES FILED, WE ARE OF THE VIEW THAT IN THE PEC ULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, THE UNDERTAKING GIVEN BY THE DIRECTOR ON AN AFFIDAVIT ADEQUATELY DEMONSTRATES TH E FACT THAT NOW THE ASSESSEE IS SERIOUS IN PURSUING THE STATUTORY REMED Y OF APPEAL AVAILABLE. IT IS SEEN THAT THE SPECIFIC REASONS WH ICH PREVAILED FOR M.A. 138/CHD/2018 IN ITA 293/CHD/2017 A.Y. 2012-13 PAGE 4 OF 6 DISMISSING THE ADJOURNMENT REQUEST HAVE BEEN ADDRES SED IN THE IMPUGNED ORDER IN THE FOLLOWING MANNER: 2. HOWEVER, AT THE TIME OF HEARING, AH ADJOURNMENT AP PLICATION WAS PLACED ON RECORD PLEADING FOR TIME ON THE FOLLOWING GROUND : SUBJECT: ADJOURNMENT IN CASE OF SHREE JEWELLER S APPEAL NO 293/2017 FOR HEARING ON 7-5-2018. HON'BLE MEMBER, WITH REFERENCE TO ABOVE WE SUBMIT THAT THE DETAILS DESIRED FOR PREPARATION OF PAPER BOOK ARE AWAITED FROM THE COUNSEL WHO APPEARE D BEFORE LOWER AUTHORITIES. WE REQUEST YOUR HONOUR TO PLEASE GIVE ADJOURNMENT I N ABOVE CASE & FIX THE HEARING IN THE MONTH OF JUNE 2018. WE SHALL BE THANKFUL TO YOU FOR THIS ACT OF KINDNES S. THANKING YOU YOURS FAITHFULLY. 3. MR. TEJ MOHAN SINGH, ADVOCATE AS PROXY COUNSEL REQ UESTED FOR TIME. HOWEVER, CONSIDERING THE FACT THAT RIGHT FROM THE F ILING OF THE APPEAL ON 13.02.2017 ON EACH OF THE DATES, THE APPEAL CAME UP FOR HEARING NAMELY 11.04.2017, 24.10.2017, 08.02.2017 AND 01.03.2018 I T WAS ADJOURNED ON THE REQUEST OF THE COUNSEL . THIS IS APART FROM THE FACT THAT ON TWO SPECIFIC OCCASIONS I.E. ON 08.06.2017 AND 22.06.2017, IT WAS ADJOURNED AS THE BENCH WAS NOT FUNCTIONAL. IT IS FURTHER SEEN THAT ADJOURNMENT ON 11.04.2017 WAS SOUGHT ON THE FOLLOWING GROUNDS : WITH REFERENCE TO ABOVE, WE SUBMIT THAT THE INFORM ATION/DOCUMENTS DESIRED FOR PREPARATION OF PAPER BOOK IN ABOVE CASES ARE AWAITE D FROM THE COUNSEL WHO APPEARED BEFORE LOWER AUTHORITIES. 3.1 ON 24.10.2017 AND 08.02.2017, IT WAS YET AGAIN SOU GHT ON THE FOLLOWING GROUND : WITH REFERENCE TO ABOVE, WE SUBMIT THAT THE INFORM ATION/DOCUMENTS DESIRED FOR PREPARATION OF PAPER BOOK IN ABOVE CASES ARE ST ILL AWAITED FROM THE COUNSEL WHO APPEARED BEFORE LOWER AUTHORITIES. 3.2 ON 01.03.2018, ADJOURNMENT WAS SOUGHT ON THE FO LLOWING GROUND : WITH REFERENCE TO ABOVE WE SUBMIT THAT WE COULD NOT PREPARE THE PAPER BOOK DUE TO SEARCH UNDER SECTION 132 OF INCOME TAX ACT H AS BEEN CONDUCTED AT OUR OFFICE BY INVESTIGATION WING, PATIALA IN CONNECTION WITH OUR CLIENT. 3.3. THE RECORD SHOWS THAT THE CO-ORDINATE BENCHES OVER A PERIOD OF TIME HAVE BEEN REPEATEDLY GIVING TIME TO THE ASSESSEE FO R THE STATED REASON OF FILING PAPER BOOK/AND/OR OBTAINING RECORDS. SINCE DESPITE SUFFICIENT OPPORTUNITIES, THE SAME HAVE NOT BEEN MADE AVAILABLE TO THE LD. AR, IT CAN BE SAFELY PRESUMED THAT THE ASSESSEE MAY NOT BE SERIOUS IN PURSUING TH E APPEAL FILED. IN THESE CIRCUMSTANCES, THE ADJOURNMENT REQUEST MOVED ON IDE NTICAL REASONS ON 07.05.2018 AS ON 11.04.2017 ONWARDS WAS REJECTED AS IT APPEARS THAT THE ASSESSEE M.A. 138/CHD/2018 IN ITA 293/CHD/2017 A.Y. 2012-13 PAGE 5 OF 6 IS NOT SERIOUS IN PURSUING THE APPEAL FILED AS THE DETAILS HAVE STILL NOT BEEN MADE AVAILABLE TO THE ASSESSEE. SUPPORT IS FROM THE ORDE R OF THE ITAT DELHI BENCHES IN THE CASE OF CIT VS MULTIPLAN INDIA PVT. LTD. (1991) 38 ITD 320 AND THE DECISION OF HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF LATE SHRI TUKOJI RAO HOLKAR VS WEALTH TAX COMMISSIONER 223 ITR 480 (MP) ETC. (EMPHASIS SUPPLIED) 4.1 IT IS SEEN THAT IN PARA 4, IN THE INTERESTS OF JUSTICE, FOLLOWING OBSERVATIONS HAVE BEEN MADE : BEFORE PARTING, IT IS APPROPRIATE TO ADD THAT IN T HE EVENTUALITY THE ASSESSEE IS ABLE TO SHOW THAT THERE WAS A REASONABLE CAUSE FOR NOT FILING THE DETAILS, AND ON THE UNDERTAKING GIVEN THAT HE IS READY TO ARGUE THE APPEAL ON MERITS WITH PAPER BOOK ETC., IT WOULD BE AT LIBERTY TO PRAY FOR A REC ALL OF THIS ORDER BY MAKING AN APPROPRIATE PRAYER. SAID ORDER WAS PRONOUNCED IN T HE OPEN COURT AT THE TIME OF HEARING ITSELF. 4.2 IN THE LIGHT OF THESE FACTS CONSIDERING THE UND ERTAKING GIVEN BY THE DIRECTOR OF THE ASSESSEE IN THE APPLICATION AND THE AFFIDAVIT, WE ARE OF THE VIEW THAT IT ADEQUATELY ADDRESSES THE NEGATI VE PRESUMPTION DRAWN THAT THE ASSESSEE MAY NOT BE SERIOUS IN PURSU ING THE APPEAL FILED. ACCORDINGLY, IN THE INTERESTS OF JUSTICE, E X-PARTE ORDER DATED 09.05.2018 IS RECALLED ACCEPTING THE EXPLANATION OF FERED AS BONAFIDE AND TRUE FOR REMAINING EFFECTIVELY NON-REPRESENTED ON THE DATE OF HEARING. EXERCISING THE POWERS AS VESTED IN US BY P ROVISO TO RULE 24 OF THE ITAT RULES 1963, THE ORDER IS RECALLED. SUPPOR T IS DRAWN FROM THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CAS E OF CIT VS ANSAL HOUSING CONSTRUCTION LTD. 274 ITR 131 (DEL). 5. REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARI NG ON 04.09.2019 A DATE CONVENIENT TO THE PARTIES. FOR THE SAID DAT E NO SEPARATE NOTICE OF HEARING SHALL BE ISSUED TO THE PARTIES AS THE DA TE WAS ANNOUNCED ON M.A. 138/CHD/2018 IN ITA 293/CHD/2017 A.Y. 2012-13 PAGE 6 OF 6 THE DATE OF HEARING ITSELF IN THE PRESENCE OF THE P ARTIES. 6. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH AUGUST,2019. SD/- SD/- ( % & ' ( ) ) ( ! ) (ANNAPURNA GUPTA) (DIVA SINGH) *+ #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER