Bhavani Industries, RAJKOT-GUJARAT V. The Addl. Commr. Income Tax, Range-2, RAJKOT-GUJARAT

MA 14/RJT/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5104 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 10 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 22-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AN KI T AN AD KA T
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “RAJKOT” BENCH, RAJKOT [Conducted through E-Court at Ahmedabad] BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMEBR & SHRI WASEEM AHMED, ACCOUNTANT MEMEBR MISCELLANEOUS APPLICATION No. 14/Rjt/2018 (In I.T.A. No. 72/Rjt/2015) ( Assess ment Ye ar : 2010-11) Bh av an i In du st ie s C/ 1- B, 23 6/ 3 GI DC , A ji Ind us tr ia l E st at e, R ajk ot - 36 00 03 ब म/ V s . Th e Ad dl .C IT Ra nge -2 , Ra jk ot / /P A N / G IR N o . : A A C F B8 0 4 6 R ( Appellant) . . ( / Respondent) /Appellant by : Sh ri An ki t An ad ka t , A .R . / Respondent by : Shri B. D. Gupta, Sr. D.R. D a t e o f H e a r i n g 23/02/2022 !"# /D a t e o f P r o n o u n c e m e n t 25/02/2022 ORDER PER MAHAVIR PRASAD, JM: By virtue of this Miscellaneous Application filed by the Assessee u/s 254(2) of the Act, the Assessee intends to recall the impugned ex parte order dt. 28-11-2017 passed by this Tribunal. 2. The Ld. AR before us submitted as under: MA No. 14/Ahd/2018 [Bhavani Industries vs. ACIT] AY 2010-11 - 2 - “1. Above appeal was lastly fixed for hearing on 23-11-2017. 2. As the undersigned health was not good and suffering from High BP, huge fluctuation adjournment application dated 22-11-2017 and send through email to [e-mail] and also to associates Y. C. Anarkat-CA to . Rajkot at 11:33PM, who has field the same at Rajkot to Department Representative, on the health ground that is suffering from HIGH BP and doctors have advice not to travel at present. Further it was also humbly requested to fix the hearing of the above appeal on 22-01-2018 as on that day another appeal being D.C.I.T. Circle-2, Jamnagar v/s Shri Rasiklal Khimji Modi, ITAT Appeal No.: ITA- 116/RJT/2016, is fixed for hearing. Copy of above adjournment application also provided to department representative. Hard Copy of above adjournment application was also send to the Asst. Registrar, Income-Tax Appellate Tribunal, 3rd, floor, Abhinav Arcade, Pritamnagar Alop, Ahmedabad through Speed Post on 22-11-2017 itself. 3. However the appeals has been dismissed as per para 2 of the Order stating that: "At the time of hearing, none appeared on behalf of the appellant- assessee. Last notice of hearing was sent to the assessee on 14-11-2017 fixing the date of hearing on 23-11-2017 at the address indicated in coloum No. 10. Despite this, the assessee remained unrepresented. It is further seen that the said notice has not come back unserved. In the aforementioned peculiar facts and circumstances of the case, in the absence of ant representation on behalf of the assessee or petition seeking time, it can safely presumed that the assessee is not serious in per suing the appeal filed. Accordingly the only alternative left is to dismiss the appeal of the assessee in limine. Support is drawn from the order of the Tribunals in Commissioner of Income-Tax vs. Multi Plan India (P) Ltd. ; 38ITD 320 (Del) and Estate of Late Tukojirao Holka vs. CWT 223 ITR 480(MP)." It is also further mentioned in para 3 of the order that: " Before parting, it is appropriate to add that in case the assessee is able to show that there was a reasonable cause for non-representation on the date of hearing, it would be at liberty if so advised to pray for recall of this order. " Accordingly, as above appeal was dismissed. 4. However, as mentioned above adjournment application has been send through e-mail and hard copy of adjournment application also send through speed-post. Further copy of adjournment application was also provided to Department representative on 22-11-2017. Further as the MA No. 14/Ahd/2018 [Bhavani Industries vs. ACIT] AY 2010-11 - 3 - undersigned is staying at Jamnagar and hearing is fixed at Rajkot which is about 90 KM from Jamnagar has requested to fix the appeal with other appeal as mentioned in the adjournment application in which the undersigned also has to appear as the undersigned is at present 67 years old and due to health reason I cannot travel frequently. 5. From the above facts it is clear that the presumption that the assessee is not interested in prosecuting his appeals against the facts of record. In fact adjournment application is filed. The non-appearance is only due to health reason of the undersigned and not of the assessee. Further if at all there is any default of non-appearance in appeal then the same is by the advocate of the assessee and for default of the Advocate at-all the assessee can-not suffer and Justice has to be given to the assessee. Further ex-party order passed is also against the Rule 24 of Income-Tax Appellate Tribunal rules. 6. Thus looking to above facts and details it is hereby prayed your Honours to please cancel the order passed and recall the above order and please take up the appeal for regular hearing and oblige.” 3. On the other hand the learned DR raised no objection if the matter is recalled for fresh adjudication as per the provision of law. 4. Heard rival submissions and perused the record. On perusal of the order dt. 28-11-2017, we find that in spite of service of notices by the Registry neither any one appeared nor there was any adjournment application filed on behalf of assessee for the hearing on 23-11-2017. Thus, following the various decisions in the cases of Multiplan India (P) Ltd reported in 38 ITD 320 (Del), Hon'ble Madhya Pradesh High Court in the case of Estate of late Tukojirao Holkar Vs. CWT reported in 223 ITR 480(MP) the Tribunal dismissed the appeal of assessee by passing ex parte order for non prosecution. We find that there was sufficient reason for the assessee in not appearing before the Tribunal on the said date of hearing [23-11-2017]. Therefore, in view of submission of assessee we recall the order dated 28-11-2017 by allowing this Misc. Application filed by the assessee. MA No. 14/Ahd/2018 [Bhavani Industries vs. ACIT] AY 2010-11 - 4 - 5. Next date of hearing in this matter is 19/04/2022 and same has been communicated to both the parties and no separate notice will be sent to any of the parties. 6. In the result, the miscellaneous application filed by the Assessee is allowed. Sd/- Sd/- ( WAS EEM AHM ED) (MAHAVIR PRASAD) ACC OUNTANT MEMB ER JUDICIAL MEMBER Ahmedabad: Dated 25/02/2022 True Copy S.K.SINHA आदेश े / Copy of Order Forwarded to:- $ / Revenue 2 द / Assessee ' ( )* + / Concerned CIT 4 + - / CIT (A) . / 0 1 2 2 )*3 )* #3 45द ( द / DR, ITAT, Ahmedabad 6 1 78 फ / Guard file. By order/ द श 3 D e p u t y / A s s t t . R e g i s t r a r I T A T , R a j k o t This Order pronounced in Open Court on 25/02/2022