M/s The Braithwaite Burn & Jessop Constraction Company Ltd., Kolkata V. D.C.I.T Cir - I,kolkata., Kolkata

MA 138/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5441 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2000-2001
• Appeal Filed On: 19-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 MA NO. 138/KOL/2019 THE BRAITHWAITE BURN & JESSOP C ONSTN. CO. LTD., AY- 2000-01 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] MA NO. 138/KOL/2019 IN I.T.A. NO. 282/KOL/2013 ASSESSMENT YEAR: 2000-01 THE BRAITHWAITE BURN & JESSOP CONSTRUCTION CO. LTD. (PAN: AAACT9760B) VS. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, KOLKATA. APPLICANT RESPONDENT DATE OF HEARING 19.07.2019 DATE OF PRONOUNCEMENT 21.08.2019 FOR THE APPLICANT SHRI PRATYUSH JHUNJHUNWALA, ADVOC ATE FOR THE RESPONDENT SHRI ROBIN CHOUDHURY, ADDL. CIT, SR. DR ORDER PER SHRI A.T.VARKEY, JM THIS MISC. APPLICATION HAS BEEN FILED BY THE ASSESS EE AGAINST THE EX PARTE ORDER PASSED BY THE TRIBUNAL DATED 22.11.2018 IN ITA NO. 282/KOL/2013 FOR AY 2000-01. 2. AT THE OUTSET ITSELF, WE NOTE THAT THIS IS AN EX PARTE ORDER PASSED BY THE TRIBUNAL IN THIS MATTER ON 22.11.2018. AT THE TIME OF HEARING, LD. AR FOR THE ASSESSEE SUBMITTED THAT THE CASE WAS BEING HANDLED EARLIER BY SHRI RAVI TUL SIYAN, FCA WHEN THE MATTER HAD COME UP FOR HEARING AND ADJOURNMENT WAS SOUGHT BY HIM. THEREAFTER THE BRIEF OF THE CASE WAS RETURNED TO THE ASSESSEE BY SHRI RAVI TULSIYAN, FCA SUGGESTING THAT THE ASSESSEE ENGAGE SOME OTHER COUNSEL FOR THE SAID MATTER. THE PERSON RESPONSIBLE IN THE COMPANY FOR HANDLING I. T. MATTERS IS SHRI T. K. MANDAL, WHO WA S UNWELL DURING THE PERIOD FROM 05.11.2018 TO 28.11.2018 AND WAS NOT ATTENDING OFFI CE AND, THEREFORE, HE COULD NOT APPOINT ANOTHER AUTHORISED REPRESENTATIVE TO APPEAR FOR THE MATTER NOR COULD BE ARRANGED FOR AN ADJOURNMENT TO BE SOUGHT IN THE MATTER. IN VIEW OF THE SAME NO ONE APPEARED ON 22.11.2018 WHEN THE MATTER WAS CALLED FOR HEARING O N THE APPOINTED DATE. SO, FOR THE ENDS OF JUSTICE HE WANTS THE ORDER TO BE RECALLED. THE LD. DR OPPOSED RECALLING OF THE IMPUGNED 2 MA NO. 138/KOL/2019 THE BRAITHWAITE BURN & JESSOP C ONSTN. CO. LTD., AY- 2000-01 ORDER. HE POINTED OUT THAT MISC. APPLICATION CANNO T BE PREFERRED AGAINST THE IMPUGNED ORDER AS IT IS HIT BY LIMITATION. 3. HAVING HEARD BOTH THE PARTIES, WE NOTE THAT THIS TRIBUNAL CANNOT PASS EX PARTE ORDER WITHOUT GOING INTO MERITS OF THE APPEAL AS HELD BY HONBLE DELHI HIGH COURT IN OM PRAKASH SANGWAN VS. ITO (2018) 94 TAXMANN.COM 394 ( DELHI) WHEREIN IT WAS HELD THAT RULE 24 OF THE INCOME TAX APPELLATE TRIBUNAL'S RULE S AND THE OTHER PROVISIONS OF BOTH THE INCOME TAX ACT AND THE RULES INDICATE THAT THE ITAT HAS TO DECIDE THE APPEALS OR MATTERS BEFORE IT ON MERITS AND ITS FAILURE TO DO SO IMPLIE S THAT IT EXCEEDED ITS JURISDICTION AND INSTEAD OF DECIDING ON THE MERITS, REJECTED THE APP EAL MERELY FOR NON-PROSECUTION. IT WAS HELD THAT SINCE RULE 24 DOES NOT STIPULATE ANY PERI OD OF LIMITATION WITHIN WHICH THE PARTY AGGRIEVED BY EX-PARTE ORDER CAN APPROACH THE TRIBUN AL, IT IS OPEN TO THE APPLICANT TO APPROACH THE TRIBUNAL WITH THE SUITABLE APPLICATION FOR RESTORATION OF THE APPEALS AND THE TIME PERIOD STIPULATED IN SECTION 254(2) OF THE ACT IS NOT APPLICABLE. FOLLOWING THIS DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF OM PRAKA SH SANGWAN, I HOLD THAT THIS APPLICATION FILED BY THE ASSESSEE FOR RECALL OF THE EX-PARTE ORDER AND RESTORATION OF ITS APPEAL IS NOT BARRED BY LIMITATION. 4. ON MERIT, WE HAVE CONSIDERED THE REASON GIVEN B Y THE ASSESSEE FOR HIS NON- APPEARANCE BEFORE THE TRIBUNAL ON 22.11.2018 WHEN T HE APPEAL WAS CALLED FOR HEARING. KEEPING IN VIEW THE SAID REASON, WE ARE SATISFIED T HAT THERE WAS SUFFICIENT CAUSE FOR THE NON-APPEARANCE OF THE ASSESSEE BEFORE THE TRIBUNAL ON 22.11.2018. WE ACCORDINGLY RECALL THE EX-PARTE ORDER PASSED BY THE TRIBUNAL DATED 22. 11.2018 KEEPING IN VIEW THE PROVISO TO RULE 24OF THE APPELLATE TRIBUNAL RULES, 1963 AND RE STORE THE APPEAL OF THE ASSESSEE TO ITS ORIGINAL NUMBER. THE REGISTRY IS DIRECTED TO FIX T HE SAID APPEAL FOR HEARING IN NORMAL COURSE. 5. IN THE RESULT, MISC. APPLICATION OF ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 21ST AUGUS T, 2019. SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 21ST AUGUST, 2019 JD.(SR.P.S.) 3 MA NO. 138/KOL/2019 THE BRAITHWAITE BURN & JESSOP C ONSTN. CO. LTD., AY- 2000-01 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT THE BRAITHWAITE BURN & JESSOP CONSTR UCTION CO. LTD., 27, R. N. MUKHERJEE ROAD, KOLKATA-700 001. 2 RESPONDENT DCIT, CIRCLE-1, KOLKATA. 3. 4. CIT(A)-XXIV, KOLKATA (SENT THROUGH E-MAIL) CIT- , KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR