Alpha Foam Ltd., Pune V. DCIT, Pune

MA 149/PUN/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5951 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-12-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 19-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Assessee Lawyers: SUNIL PATHAK

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH PUNE BEFORE SHRI SHAILENDRAKUMAR YADAV AND SHRI D. KARUNAKARA RAO MA NO. 149/PN/10 (ARISING OUT OF ITA NO. 1617/PN/20 08) A.Y 2004-05 ALPHA FOAM LTD., J-172, MIDC BHOSARI, PUNE-411 028 PAN NO. AACCA4196J .... APPELLANT VS. DCIT, RANGE-8, PUNE . RESPONDENT APPELLANT BY : SHRI SUNIL PATHAK RESPONDENT BY : SHRI PANKAJ GARG ORDER PER D. KARUNAKARA RAO AM THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE HAS BEEN FILED ON 19-08- 2010, ARISING OUT OF THE TRIBUNAL ORDER BEARING ITA NO. 1617/PN/08. THROUGH THIS MISCELLANEOUS APPLICATION, THE ASSESSEE HAS PRA YED FOR RECALLING AN EX-PARTE ORDER OF THE TRIBUNAL DATED 24 TH MAY, 2010 DISMISSED IN LIMINE ON THE GROUND OF NON-APPEARANCE ON BEHALF OF THE APPELLANT AND THE S HORT PRAYER OF THE PETITIONER IS FOR GRANTING FRESH HEARING AND DISPOSAL OF THE APPEA L ON MERITS. 2. LEARNED COUNSEL MR. SUNIL PATHAK, APPEARED FOR THE P ETITIONER AND STATED THAT THE MISCELLANEOUS APPLICATION HAS BEEN MOVED B Y THE APPLICANT-ASSESSEE FOR THE REASONS MENTIONED IN THE PETITIONS, RELEVANT PARAG RAPHS OF WHICH ARE REPRODUCED BELOW:- AS PER THE ORDER OF THE HONBLE TRIBUNAL, THE ASSESSE ES CASE WAS FIXED FORD HEARING ON 19.05.2010. ON THAT DAY, THERE WAS NO ATT ENDANCE FROM THE SIDE OF THE ASSESSEE AND THEREFORE, THE HONBLE TRIBUNAL DISMISS ED THE ASSESSEES APPEAL IN VIEW OF THE DECISION IN THE CASE OF MULTIPLAN INDIA LTD. 38 ITD 320 AND ESTATE OF LATE TUKOIRAO HOLKAR [223 ITR 40 (MP)] ON THE GROU ND THAT THE ASSESSEE DID NOT ATTEND THE HEARING NOR DID HE SEEK AN ADJOURNMEN T. IT IS SUBMITTED THAT THE NOTICE OF HEARING WAS RECEIVED BY THE ASSESSEE COMPANY. SUCHETA WAGHCHOURE IS MANAGER ACCOUNTS AND IS LOOKING A FTER THE FINANCIAL MATTERS OF THE COMPANY. THE NOTICE OF HEARING BEFORE HONBLE ITAT WAS GIVEN TO HER BUT INADVERTENTLY, SHE KEPT THE NOTICE WITH HER AND FORGOT TO INFORM ABOUT THE HEARING BEFORE HONBLE ITAT, PUNE TO SHRI RAJIV RAN KA, M.D. OF THE COMPANY. IT WAS BECAUSE OF HER MISTAKE, THE ASSESSEE COMPANY COULD NOT APPOINT ANY COUNSEL TO REPRESENT IT BEFORE THE HONBLE ITAT. THE C OPY OF THE AFFIDAVIT OF SUCHETA WAGHCHOURE CONFIRMING THE ABOVE FACT IS ENCLOS ED HEREWITH. IN VIEW OF MA NO. 149/PN/10 ARISING OUT OF ITA NO. 1617/PN/08 A.Y. 2004-05 PAGE 2 OF 2 THE ABOVE, THE ASSESSEE SUBMITS THAT THERE WAS A REA SONABLE CASE FOR NON ATTENDANCE BEFORE THE HONBLE ITAT, PUNE. ACCORDINGLY, THE ASSESSEE REQUESTS THAT THE ORDER MAY BE RECALLED AND A FRESH OPPORTUNITY OF HEARING MAY BE GIVEN TO THE ASSESSEE. THE ASSESSEE WOULD BE GRATEFUL IF THE ABOVE REQUEST IS ACCEPTED. 3. WE HAVE HEARD THE LEARNED D.R. SHRI PANKAJ GARG. ON CONSIDERATION OF THE MATERIAL PLACED BEFORE US AND IN VIEW OF THE FACT UAL POSITION REFERRED IN ABOVE PARAGRAPH, WE ARE SATISFIED THAT THERE WAS SUFFI CIENT REASON FOR NON- APPEARANCE BY THE ASSESSEE ON THE DATE OF HEARING BE FORE THE TRIBUNAL. WE FIND FORCE IN THE MISCELLANEOUS APPLICATION SINCE THE APP EAL HAS BEEN DISMISSED IN LIMINE , ADMITTEDLY DUE TO NON-APPEARANCE OF THE APPELLANT . MOREOVER, RULE 24 OF ITAT RULES ALSO PROVIDED THAT WHERE AN APPEAL HAS BEE N DISPOSED OF DUE TO NON- APPEARANCE OF THE APPELLANT AND SUBSEQUENTLY, IT WA S FOUND THAT THERE WAS SUFFICIENT CAUSE FOR THE SAID NON-APPEARANCE, THE TRIB UNAL SHALL MAKE AN ORDER SETTING ASIDE EXPARTE ORDER AND RESTORING THE APPEAL. I N VIEW OF THIS, WE HEREBY RECALL OUR ORDER DT. 24 TH MAY, 2010 REFERRED HEREINABOVE AND FIX THE DATE OF HEARING, OUT OF TURN ON 24/01/2011 . THOUGH THE DATE OF HEARING IS PRONOUNCED AND DULY COMMUNICATED IN THE COURT BUT STILL THE REG ISTRY IS DIRECTED TO ISSUE NOTICE OF HEARING TO THE PARTIES ACCORDINGLY. THE APP ELLANT IS ALSO DIRECTED NOT TO SEEK FRIVOLOUS ADJOURNMENT AND ADOPT ALL REASONABLE ST EPS TO GET THE APPEAL FINALIZED AT AN EARLY DATE. 4. IN THE RESULT, THE MA OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED 08 TH DECEMBER, 2010. SD/- SD/- (SHAILENDRAKUMAR YADAV) (D.KARUNAKAR A RAO) JUDICIAL MEMBER ACCOUNTANT MEMBE R PUNE DATED THE 08 TH DECEMBER, 2010 R COPY OF THE ORDER IS FORWARDED TO : 1. ASSESSEE 2. DCIT, RANGE-8, PUNE 3. CIT(A)-III, PUNE 4. CIT-V, PUNE 5. D.R. ITAT PUNE BENCH, PUNE BY ORDER ASSISTANT REGISTRAR I.T.A.T PUNE