Rahul Gopalji Nigam, Nashik V. Assistant Commissioner of Income-tax,

MA 14/PUN/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5146 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 02-12-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 07-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANKET JOSHI APPLICANT
• Assessee Lawyers: SANKET JOSHI SHRI P L K
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . /MA NO. 14 /PN/ 20 1 6 ARISING OUT OF ITA NO. 612 /PN/20 1 4 ASSESSMENT YEAR : 200 5 - 0 6 SHRI RAHUL GOPALJI NIGAM, MICRON INDUSTRIES, J - 38, MIDC, AMBAD, NASHIK 422010 ... APPLICANT / RESPONDENT PAN: AA APN9227A VS. THE A SST. COMMISSIONER OF INC OME TAX, CIRCLE 2, NASHIK ... RESPONDENT / APPELLANT APPLICANT ASSESSEE BY : SHRI SANKET JOSHI APPLICANT ASSESSEE BY : SHRI SANKET JOSHI RESPONDENT REVENUE BY : SHRI P.L. KUREEL / DATE OF HEARING : 0 2 . 1 2 .201 6 / DATE OF PRONOUNCEMENT: 21 . 12 .201 6 / ORDER PER SUSHMA CHOWLA , JM : THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE APPLICANT AGAINST THE ORDER OF TRIBUNAL IN ITA NO. 612 /PN/20 1 4 RELATING TO ASSESSMENT YEAR 200 5 - 0 6 , ORDER DATED 08 . 1 0 .201 5 . 2 M A NO. 14 /PN/20 1 6 ARISING O UT OF ITA NO. 612 /PN/ 20 1 4 2. THE ASSESSEE A PPLICANT IS AGGRIEVED BY THE EX PARTE ORDER PASSED AGAINST HIM AND HAS PLEADED THAT HE HAD NOT RECEIVED ANY COMMUNICATION ABOUT THE HEARING FIXED ON 0 5 . 1 0.201 5 AND HENCE THE DEFAULT IN APPEARANCE BEFORE THE TRIBUNAL. 3. THE PERUSAL OF THE ORDER PASSED BY THE TRIBUNAL REFLECTS THAT THE REFERENCE IS MADE TO DATES OF HEARING, UNDER WHICH THE APPEAL W AS FIXED FOR HEARING ON 06 .0 8 .2015, BUT THE MATTER WAS ADJOURNED TO 05.10.2015 AT THE REQUEST OF ASSESSEE VIDE APPLICATION DATED 01.08.2015 . FURTHER, THE PARTIES WERE DULY INFORMED ABOUT THE APPOINTED DATE OF HEARING I.E. 05.10.2015 IN OPEN COURT . HOWEVER, ON THE APPOINTED DATE OF HEARING , NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY APPLICATION WAS MOVED FOR ADJOURNMENT, HENCE THE TRI BUNAL PROCEEDED TO DECIDE THE APPEAL EX PARTE ON 0 5 . 1 0.201 5 . 4. THE APPLICANT IS AGGRIEVED WITH THE ORDER OF TRIBUNAL AND HAS PLEADED THAT HE HAD NOT RECEIVED ANY COMMUNICATION ABOUT THE HEARING FIXED IN THE CASE. THERE IS NO MERIT IN THE SAID PLEA OF ASSESSEE, WHERE THE MATTER WAS ADJOURNED AT THE REQUEST OF ASSESSEE AND IT WAS INCUMBENT UPON THE ASSESSEE TO FIND THE NEXT DATE OF HEARING. HENCE, THERE IS NO MERIT IN MISCELLANEOUS APPLICATION MOVED BY THE APPLICANT. 5. UNDER THE PROVISIONS OF RULE 25 OF INCOME TAX APPELLATE T RIBUNAL RULES, WHERE THE EX PARTE ORDER HAS BEEN PASSED FOR DEFAULT OF ASSESSEE, THEN IT IS PROVIDED THAT IF THE RESPONDENT APPEARS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON - APPEARANCE WHEN THE APPEAL WAS CALLED FOR HEARING, TH EN THE TRIBUNAL SHALL MAKE THE ORDER SETTING ASIDE THE EX PARTE ORDER AND RESTORE 3 M A NO. 14 /PN/20 1 6 ARISING O UT OF ITA NO. 612 /PN/ 20 1 4 THE APPEAL. IN VIEW THEREOF, THE ONUS IS UPON THE RESPONDENT TO SATISFY THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON - APPEARANCE ON THE APPOINTED DATE OF HEARING. IN CASES, W HERE A NOTICE OF HEARING HAS BEEN ISSUED TO THE ASSESSEE WHICH HAS BEEN COMPLIED WITH BY THE ASSESSEE AND ADJOURNMENT HAS BEEN SOUGHT BY FILING COMMUNICATION IN THIS REGARD BEFORE THE TRIBUNAL, THEN THE DUTY IS CAST UPON THE PERSON SEEKING ADJOURNMENT TO N OTE THE NEXT DATE OF HEARING. IN SUCH CASES, THE ONUS IS NOT UPON THE TRIBUNAL TO SEND ANOTHER NOTICE OF HEARING TO THE ASSESSEE, WHERE THE DATE OF HEARING IS ANNOUNCED IN OPEN COURT ON AN APPLICATION MOVED BY THE RESPONDENT. THE PLEA OF ASSESSEE THAT IT WAS NOT AWARE OF THE NEXT DATE OF HEARING SINCE NO NOTICE OF HEARING WAS ISSUED TO HIM , IN SUC H CIRCUMSTANCES, IS NOT JUST IFIED, WHERE INITIAL NOTICE OF HEARING HAS BEEN SERVED UPON THE ASSESSEE AND HAS BEEN COMPLIED WITH BY THE ASSESSEE BY FILING THE APP LICATION FOR ADJOURNMENT. WHEN SUCH AN APPLICATION IS TAKEN UP AND THE CASE IS ADJOURNED AT THE WRITTEN REQUEST OF THE RESPONDENT, THEN IT IS THE ENDEAVOUR OF RESPONDENT TO FIND OUT THE REQUEST OF THE RESPONDENT, THEN IT IS THE ENDEAVOUR OF RESPONDENT TO FIND OUT THE NEXT DATE OF HEARING AND COMPLY WITH THE SAME. THE CASE OF APPLICANT BEFORE US IS THUS, IS NOT GOVERNED BY THE RULE 25 OF ITAT RULES AND THE PLEA OF APPLICANT IN THIS REGARD IS THUS, DISMISSED. 6 . FURTHER, IT MAY BE POINTED OUT THAT THE TRIBUNAL HAD DECIDED THE PRESENT APPEAL RELYING ON THE IDENTICAL ISSUE BEING DECIDED I N THE CASE OF ASSESSEE IN EARLIER YEAR VIDE ORDER DATED 23.01.2012. ONCE AN ISSUE IS SETTLED BY THE ORDER OF TRIBUNAL, THEN THE SAME IS TO BE FOLLOWED IN THE LATER YEARS UNLESS AND UNTIL THE FACTS ARE AT VARIANCE. NO SUCH CASE WAS PLEADED AND THERE IS NO MERIT IN THE CLAIM OF ASSESSEE IN THIS REGARD. ANOTHER POINT RAISED BY THE APPLICANT IN HIS APPLICATION VIDE PARA 9 IS AN OPPORTUNITY BE GRANTED TO DEFEND HIS CASE ON THE OTHER TWO GROUNDS PERTAINING TO THE VALIDITY OF RE - ASSESSMENT UNDER SECTION 147 AND VALIDITY 4 M A NO. 14 /PN/20 1 6 ARISING O UT OF ITA NO. 612 /PN/ 20 1 4 OF ADDITION ON ANOTHER ASPECT. IT MAY BE POINTED OUT HEREIN ITSELF THAT THE MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE APPLICANT AGAINST THE APPEAL FILED BY REVENUE WHERE THE ONLY ISSUE RAISED WAS ON MERITS . T HE ASSESSEE HAD NOT FILED ANY APPEAL, CROSS OBJECTIONS OR MOVED ANY APPLICATION UNDER RULE 29 OF ITAT RULES FOR DECIDING THE ISSUE OF RE - ASSESSMENT UNDER SECTION 147 OF THE ACT OR ANY OTHER ASPECT OF ADDITION AND HENCE, THERE IS NO MERIT IN THE SAID STAND TAKEN BY THE APPLICANT IN MISCELLANEOUS APPLICATION AND THE SAME IS DISMISSED. 7 . IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY APPLICANT IS DISMISSED. ORDER P RONOUNCED ON THIS 21 ST DAY OF DECEM BER , 201 6 . SD/ - SD/ - ( ANIL CHATURVEDI ) ( SUSHMA CHOWLA ) ANIL CHATURVEDI SUSHMA CHOWLA / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 21 ST D ECEM BER , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APP LICANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 2 , NASHIK ; 4. / THE CIT - 2 , NASHIK ; 5. , , / DR B , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER, // TRUE COPY // // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE