M/s Akash Enterprises, Howrah V. ITO, Ward 46(1) Kolkata, Kolkata

MA 152/KOL/2017

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 5552 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 31-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DAVID Z CHAWNGTHU CIT LD
• Assessee Lawyers: MANOJ KATARUKA LD

Judgement Text

INCOME TAX APPELLATE TRIBUNAL D BENCH : K OLKATA BEFORE SHRI WASEEM AHMED, AM & SHRI S.S.VISWANE THRA RAVI, JM M.A. NO. 152/K OL/2017 [IN I.T A NO. 143/KOL/2017 A.Y 2006-07] M/S. AKASH ENTERPRISE VS. INCOME TAX OFFICER PAN: AAJFA 1673N WARD 46(1), KOLKATA [ APPLICANT ] [ RESPONDENT ] APPLICANT BY : SHRI MANOJ KATARUKA, A DVOCATE, LD.AR RESPONDENT BY : SHRI DAVID Z. CHAWNGTHU, ADDL.CIT, LD.SR.DR DATE OF HEARING : 06-10-2017 DATE OF PRONOUNCEMENT : 2 5-10-2017 ORDER SHRI S.S.VISWANETHRA RAVI, JM BY VIRTUE OF THIS MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE U/S. 254(2) OF THE ACT, THE ASSESSEE INTENDS TO RECALL T HE IMPUGNED EX PARTE ORDER DT. 01-06-2017 PASSED BY THIS TRIBUNAL. 2. BY WAY OF THIS MISC. APPLICATION THE ASSESSEE ST ATED VIDE ORDER DT. 01-06-2017 THE TRIBUNAL [ITAT KOLKATA] DISMISSED TH E APPEAL OF THE ASSESSEE FOR NON PROSECUTION. THE ASSESSEE DID NOT RECEIVE ANY NOTICE OF HEARING AND ALSO NOT AWARE OF HEARING FIXED ON 01. 06.2017. THE TRIBUNAL DISMISSING THE ASSESSEES APPEAL PASSED ON 01.06.20 17, WHICH WAS NOT SERVED ON THE ASSESSEE AND RETURNED BACK FROM THE P OSTAL DEPARTMENT. AFTER THAT THE LD.AR OF THE ASSESSEE HAS COLLECTED THE ORDER ON 16-08- 2017. THE ASSESSEE WAS UNAWARE OF THE DATE OF HEARI NG, WHICH RESULTED IN NON PROSECUTION AND NON-ATTENDANCE BY THE ASSESSEE. SUCH NON- ATTENDANCE/ NON PROSECUTION WAS DUE TO THE BONAFIDE REASON. IN VIEW OF ABOVE, HE PRAYED TO RECALL THE SAID ORDER BY ALLOWI NG THIS MISC. APPLICATION FILED BY THE ASSESSEE. M.A NO. 152/KOL/2017 2 3. ON THE OTHER HAND, THE LD.DR RELIED ON THE SAID ORDER DT. 01.06.2017 OF THE TRIBUNAL. HE OPPOSED TO THE SUBMISSION OF TH E LD.AR IN ALLOWING THIS MISC. APPLICATION. 4. HEARD RIVAL SUBMISSIONS AND PERUSED THE RECORD. ON PERUSAL OF THE ORDER DT. 01-06-2017, WE FIND THAT INSPITE OF SERVI CE OF NOTICES BY THE REGISTRY TIME TO TIME NEITHER ANY ONE APPEARED NOR THERE WAS ANY ADJOURNMENT APPLICATION ON BEHALF OF ASSESSEE FOR T HE HEARING ON 01-06- 2017. THUS, FOLLOWING THE VARIOUS DECISIONS IN THE CASES OF MULTIPLAN INDIA (P) LTD REPORTED IN 38 ITD 320 (DEL), HONBLE MADHY A 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 ASSESS EE BY EX PARTE ORDER FOR NON PROSECUTION. WE FIND THAT THERE WAS SUFFICI ENT REASON OF ASSESSEE IN NOT APPEARING BEFORE THE TRIBUNAL ON THE SAID DA TE OF HEARING [01-06- 2017]. THEREFORE, IN VIEW OF SUBMISSIONS OF ASSESSE E WE RECALL THE ORDER DT. 01-06-2017 BY ALLOWING THIS MISC. APPLICATION F ILED BY THE ASSESSEE. THE REGISTRY IS DIRECTED TO FIX THE CASE AFRESH BY ISSUING NOTICES TO THE RESPECTIVE PARTIES. 5. IN THE RESULT, THE MISC. APPLICATION FILED BY T HE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25-10-2017 SD/- SD/- WASEEM AHMED S.S.VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 25-10-2017 COPY OF THE ORDER FORWARDED TO: 1 . APPLICANT/ASSESSEE : M/S. AKASH ENTERPRISE 4/5 PITAMBAR BANERJEE LANE, HOWRAH-711101. 2 RESPONDENT/DEPARTMENT : THE INCOME TAX OFFICER, WAR D 46(1), 3 GOVT PLACE (W), KOLKATA-700001. 3 . CIT, 4 . CIT(A), 5 . DR, KOLKATA BENCHES, KOLKATA **PP/SPS TRUE COPY BY ORDER, SR.PS, H.O.O,ITAT,KOL M.A NO. 152/KOL/2017 3