Shri Sunil G.Duseja, CHENNAI V. DCIT, CHENNAI

MA 148/CHNY/2007

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 5346 (ITAT-CHENNAI)
• Duration Of Justice: 3 year(s) 8 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-02-2011
• Assessment Year: 1999-2000
• Appeal Filed On: 11-06-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SRINIVAS
• Assessee Lawyers: DEVANATHAN
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHENNAI BENCH C : CHENNAI [BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI ABRAHAM P GEORGE, ACCOUNTANT MEMBER] M.P.NOS. 147 & 148/MDS/2007 [ARISING OUT OF I .T.A NOS. 232 & 233/MDS/2004] ASSESSMENT YEARS : 1998-99 & 1999-2000 SHRI SUNIL DUSEJA 4, 2 ND STREET, KASTURI ESTATE CHENNAI VS THE DY. CIT COMPANY CIRCLE II(2) CHENNAI (PETITIONER) (RESPONDENT) PETITIONER BY : SHRI DEVANATHAN RESPONDENT BY : SHRI B. SRINIVAS O R D E R PER HARI OM MARATHA, JUDICIAL MEMBER: THESE MISCELLANEOUS PETITIONS HAVE BEEN FILED BY THE ASSESSEE-RESPONDENT TO RECALL THE EX-PARTE ORDER DA TED 11.5.2007 PASSED IN I.T.A.NO. 232 & 233/MDS/2004, FOR ASSESSM ENT YEARS 1998- 99 AND 1999-2000, UNDER THE PRECINCT OF SECTION 254 (2) OF THE INCOME- TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT). 2. THE CASE OF THE PETITIONER IS THAT NOTICE FOR THE HEARING ON 2.4.2007 WAS RECEIVED BY THE ASSESSEE, BUT THE SAME COULD NOT BE HANDED OVER TO HIS AUTHORIZED REPRESENTATIVE AS HE WAS OUT OF STATION DUE TO CERTAIN FAMILY MATTERS. THE APPEALS WERE FI XED FOR HEARING ON 4.5.2007 SO, THIS NON-APPEARANCE ON BEHALF OF THE A SSESSEE IS NEITHER M.P 147&148/07 :- 2 -: WILLFUL NOR INTENTIONAL. IT WAS SUBMITTED THAT TH E ASSESSEE HAS A VERY GOOD PRIMA-FACIE CASE AND HAS LOST THE SAME DUE TO NON-PROSECUTION. THE ISSUE INVOLVED IN THESE APPEALS IS REGARDING TR EATING INTEREST INCOME FROM HIS FINANCE BUSINESS AS INCOME FROM O THER SOURCES ALTHOUGH IN EARLIER YEARS, THE ASSESSING OFFICER HA S BEEN ACCEPTING THE SAME AS BUSINESS INCOME, BUT ONLY FOR TWO ASSESS MENT YEARS 1998- 99 AND 1999-2000, THE ASSESSING OFFICER HAS CHANGED HIS MIND AND HAS TREATED THIS INCOME IN A DIFFERENT WAY. SO, IN THE LIGHT OF THESE FACTS AND AS THE CASE WAS HEARD EX-PARTE, IRREPARA BLE LOSS HAS BEEN CAUSED TO THE ASSESSEE, WHICH CANNOT BE CORRECTED U NLESS THE ORDER IN QUESTION IS RECALLED. RELIANCE HAS BEEN PLACED O N THE DECISION OF HON'BLE SUPREME COURT RENDERED IN THE CASE OF RAFIQ AND ANOTHER VS MUNSHILAL AND ANOTHER, (1981) 2 SCC 788. IN THIS C ASE, IT HAS BEEN HELD THAT CONTESTING PARTIES SHOULD NOT SUFFER FOR THE LAPSES ON THE PART OF THEIR COUNSEL. 3. WE HAVE HEARD BOTH SIDES AND HAVE ALSO TAKEN INT O CONSIDERATION THE OBJECTION OF THE LD.DR IN RECALLI NG THIS ORDER, BUT WE ARE OF THE CONSIDERED OPINION THAT ASSESSEE HAS A G OOD REASON FOR NON-APPEARANCE AND THE FACTS OF THE CASE IN FIRST SIGHT REVEALS THAT THE ISSUE INVOLVED IN THIS CASE IS A DEBATABLE ONE AND IF WE DO NOT RECALL THIS ORDER, A PERMANENT INJUSTICE WOULD OCCUR TO TH E PETITIONER WHICH IS NOT THE INTENTION OF THE LAW. IN THE LIGHT OF THE HON'BLE SUPREME COURT M.P 147&148/07 :- 3 -: DECISION, WE RECALL THE ORDER DATED 11.5.2007 IN QU ESTION AND DIRECT THE REGISTRY TO FIX THE APPEALS FOR FRESH HEARING IN DU E COURSE. 4. IN THE RESULT, BOTH THE MISCELLANEOUS PETITIONS FILED BY THE ASSESSEE STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18. 2.2011. SD/- SD/- (ABRAHAM P GEORGE) ACCOUNTANT MEMBER ( HARI OM MARATHA ) JUDICIAL MEMBER DATED: 18 TH FEBRUARY, 2011 RD COPY TO: PETITIONER/RESPONDENT/CIT(A)/CIT/DR