BABU LAL SOMANI, Kota V. ITO, Kota

MA 14/JPR/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6617 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-05-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 22-01-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAN SINGH
• Assessee Lawyers: PRAKUL KHURANA

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ MA NO.14/JP/2018 (ARISING OUT OF ITA NO. 931/JP/201 3) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 BABU LAL SOMANI, PROP. M/S SOMANI & COMPANY AND SOMANI CARRIER, BUNDI ROAD, KOTA CUKE VS. ITO, WARD-2(1), KOTA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ATBPS9231K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI PRAKUL KHURANA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAN SINGH (ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 23/02/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 21/05/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE CO-ORDINATE BENCH I N ITA NO. 931/JP/2013 DATED 18.09.2017 FOR AY 2009-10. 2. IN ITS APPLICATION, THE ASSESSEE HAS SUBMITTED T HAT THE SUBJECT APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD . CIT(A) KOTA DATED 30.09.2013 FOR AY 2009-10 WAS DECIDED EX PARTE BY T HIS TRIBUNAL VIDE ITS ORDER DATED 18.09.2017. IT WAS SUBMITTED THAT T HE DEFAULT IN APPEARANCE IS ATTRIBUTABLE TO BONAFIDE HUMAN ERROR ON THE PART OF AN M.A. NO. 14/JP/2018 SHRI BABU LAL SOMANI, KOTA VS. ITO, KOTA 2 ASSOCIATE (MR. DEEPAK PAREEK) IN READING THE CORREC T DATE NOTED IN THE FILE IN AS MUCH AS HE INADVERTENTLY READ THE DATE O F NEXT HEARING I.E. 04.08.2017 AS 09.08.2017 WHICH WAS NOTED AFTER THE LAST HEARING DATED 07.06.2017. IT WAS SUBMITTED THAT THE DATE OF HEAR ING 4.08.2017 WAS NOTED ON THE FILE IN THE HANDWRITING OF SOME OTHER OFFICE COLLEAGUE WITH SOME OVERWRITING AS A RESULT OF WHICH THERE HAPPENE D AN INADVERTENT MISTAKE IN READING 4 AS 9. 3. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAS E ARLIER MOVED AN MISC. APPLICATION U/S 254(2) ON 30.10.2017 ON THE G ROUND THAT THE ORDER PASSED IN THE CASE OF SHRI RITESH KUMAR SOMAN I (IN ITA NO. 415/JP/2014 DATED 26.08.2016) REMAINED TO BE CONSID ERED BY THE BENCH. IT WAS SUBMITTED THAT THE BENCH HAS SINCE R EJECTED THAT MISC. APPLICATION ON 22.12.2017 AND NOW THE ASSESSEE HAS MOVED A FRESH MISC. APPLICATION UNDER RULE 25 OF THE ITAT RULES, 1963. 4. IT WAS SUBMITTED THAT ON ACCOUNT OF THE EXPARTE ORDER DATED 18.09.2017, HUGE DEMAND EXCEEDING RS. 60 LACS HAVE BEEN REVIVED AGAINST THE APPLICANT WHO IS A SENIOR CITIZEN AGED 79 YEARS AND SUFFERING FROM KIDNEY DISEASE AND MANY OTHER MEDICAL AILMENTS . IT WAS ACCORDINGLY SUBMITTED THAT THE ORDER MAY KINDLY BE RECALLED AND THE APPEAL BE RESTORED AND BE HEARD AFRESH IN THE INTER EST OF SUBSTANTIAL JUSTICE. 5. THE LD. DR IS HEARD WHO HAS OPPOSED THE MISC. AP PLICATION. IT WAS SUBMITTED BY THE LD DR THAT THE COORDINATE BENC H HAS PASSED THE ORDER ON MERIT TAKING INTO CONSIDERATIONS THE CONTE NTIONS OF THE LD DR AND MATERIAL ON RECORD AND THERE IS NO SUFFICIENT C AUSE WHICH HAS BEEN M.A. NO. 14/JP/2018 SHRI BABU LAL SOMANI, KOTA VS. ITO, KOTA 3 SHOWN BY THE ASSESSEE FOR NON-APPEARANCE ON THE SCH EDULED DATE OF HEARING. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FIRSTLY, IT IS NOTED THAT THIS IS THE 2 ND MISC. APPLICATION WHICH HAS BEEN FILED BY THE ASSESSEE AG AINST THE ORDER PASSED BY THE CO-ORDINATE BENCH IN ITA NO. 931/JP/2 013 DATED 18.09.2017. IN THE FIRST MISC. APPLICATION, THE ASS ESSEE HAS SUBMITTED THAT CERTAIN FACTS SEEM TO HAVE ESCAPED THE ATTENTI ON OF THE BENCH AND IT WAS FURTHER SUBMITTED THE DECISION OF THE CO-ORD INATE BENCH IN CASE OF RITESH KUMAR SOMANI IN ITA NO. 415/JP/2014 DATED 26.08.2016 HAS NOT BEEN CONSIDERED. THE SAID CONTENTION SO RAISED BY THE ASSESSEE HAVE ALREADY BEEN DISPOSED OF BY THIS BENCH WHILE D ISPOSING OFF THE MISC. APPLICATION VIDE ITS ORDER DATED 29.12.2017. THEREFORE, WE DO NOT FIND ANY NECESSITY TO AGAIN EXAMINE THE SAID CONTEN TION SO RAISED BY LD. AR WHICH HAVE ALREADY BEEN CONSIDERED BY THE BENCH WHILE DISPOSING OFF THE INITIAL MISC. APPLICATION. 7. FURTHER, IN THE PRESENT MISC. APPLICATION, THE A SSESSEE HAS RAISED A FRESH CONTENTION WHICH WAS NOT RAISED IN THE INIT IAL MISC. APPLICATION TO THE EFFECT THAT THE DEFAULT IN APPEARANCE ON THE SC HEDULED DATE OF HEARING IS ON ACCOUNT OF BONA FIDE HUMAN ERROR ON T HE PART OF MR. DEEPAK PAREEK IN READING THE DATE OF HEARING. IT W AS SUBMITTED THAT THOUGH THE DATE OF HEARING I.E. 4.08.2017 WAS CORRE CTLY NOTED IN THE FILE, HOWEVER THE SAME WAS WRONGLY READ AS 9.08.2017. 8. ON PERUSAL OF THE RECORDS, IT IS NOTED THAT ON 0 7.06.2017, MR. PRAFUL KHURANA, THE LD AR APPEARED AND MATTER W AS ADJOURNED FOR M.A. NO. 14/JP/2018 SHRI BABU LAL SOMANI, KOTA VS. ITO, KOTA 4 04.08.2017 AND THERE IS A CLEAR NOTING AND SIGNATUR E BY THE LD AR ACKNOWLEDGING THE NEXT DATE OF HEARING WHICH WAS SC HEDULED FOR 04.08.2017. ON THE SCHEDULED DATE OF HEARING, NEITH ER ANYONE APPEARED NOR ANY ADJOURNMENT APPLICATION WAS FILED. FURTHER, THERE IS NOTHING ON RECORD WHICH SUGGESTS THAT ANYONE APPEAR ED OR ANY ADJOURNMENT APPLICATION WAS FILED ON THE DATE INADV ERTENTLY NOTED AS AS SO CLAIMED AS 9.08.2017 INSTEAD OF SCHEDULED DATE O F HEARING. MERELY SAYING THAT MR DEEPAK PAREEK, WHOSE LOCUS STANDI IN THE MATTER IS NOT CLEAR, HAS READ THE DATE OF HEARING WRONGLY THOUGH CORRECTLY WRITTEN IN THE FILE CANNOT BE ACCEPTED. THE SAID CONTENTION I S A MERE CONTENTION WITHOUT ANY AFFIDAVIT ON RECORD EXPLAINING THE LOCU S STANDI OF DEEPAK PAREEK AND EVENTS/CAUSES FOR NON-APPEARANCE AND EVE N THE SUBSEQUENT NON-APPEARANCE BY THE LD AR ON DATE SO READ AND CLA IMED AS 9.08.2017 NEGATES THE WHOLE CONTENTION SO RAISED BY THE ASSES SEE. FURTHER, WE FAILED TO UNDERSTAND THAT WHERE WHAT HAS BEEN CLAIM ED WAS THE SITUATION FOR NON-APPEARANCE, WHAT STOPPED THE ASSE SSEE OR THE LD AR WHO CONTINUES TO REPRESENT THE ASSESSEE IN ALL THES E PROCEEDINGS IN STATING THE SAME WHILE MOVING THE INITIAL MISC. APP LICATION. THE ASSESSEE OR THE LD AR CANNOT BE PERMITTED TO MOVE M ULTIPLE MISC. APPLICATION INITIALLY UNDER SECTION 254(2) AND NOW INVOKING RULE 25 ON THE SAME SET OF FACTS UNDER RULE 25 OF THE ITAT RUL ES, 1963, WE ARE THEREFORE NOT SATISFIED THAT THERE WAS SUFFICIENT C AUSE FOR NON- APPEARANCE ON THE SCHEDULED DATE OF HEARING. 9. FURTHER, WE FIND THAT THE COORDINATE BENCH WHILE PASSING THE ORDER DATED 18.09.2017 HAS DISPOSED OFF THE APPEAL ON MERIT BASED ON MATERIAL AVAILABLE ON RECORD AND IT WAS NOT A SIMPL ICITER EX-PARTE ORDER. THE ORDER PASSED BY THE COORDINATE BENCH IS A WELL REASONED AND A M.A. NO. 14/JP/2018 SHRI BABU LAL SOMANI, KOTA VS. ITO, KOTA 5 SPEAKING ORDER BRINGING OUT THE RELEVANT FACTS AND THE LAW APPLICABLE FOR THE IMPUNGED ASSESSMENT YEAR AND THEREAFTER, THE AP PEAL WAS DECIDED ON MERIT WHICH IS IN CONSONANCE WITH RULE 25 OF THE ITAT RULES, 1963. 10. THE MISC. APPLICATION SO FILED IS THUS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 21/05/2018. SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21/05/2018. * GANESH KR VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- BABU LAL SOMANI, KOTA 2. IZR;FKHZ@ THE RESPONDENT- ITO, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { M.A. NO. 14/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR