Hastimal Sancheti Memorial Trust, Pune V. ITO, Pune

MA 153/PUN/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1292 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 06-12-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 07-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Opportunity of being heard; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI R.K. PANDA ACCOUNTANT MEMBER MA NO. 153/PN/2013 (ARISING OUT OF ITA NO.1573/PN/2011) (ASST.YEAR : 2007-08) HASTIMAL SANCHETI MEMORIAL TRUST, 16, SHIVAJINAGAR, PUNE-411005 .. APPLICANT PAN NO.AAATH0666F VS. ITO, WARD-1(4), .. RESPONDENT (ITA NO.1573/PN/2011) (ASST.YEAR : 2007-08) HASTIMAL SANCHETI MEMORIAL TRUST, 16, SHIVAJINAGAR, PUNE-411005 .. APPELLANT PAN NO.AAATH0666F VS. ITO, WARD-1(4), .. RESPONDENT ASSESSEE BY : SHRI NIKHIL PATHAK REVENUE BY : SHRI S.P. WALIMBE DATE OF HEARING : 06-12-2013 DATE OF PRONOUNCEMENT : 06-12-2013 ORDER PER R.K.PANDA, AM : THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS THE TRIBUNAL TO RECALL THE EXPARTE ORDER PASSED BY IT DISMISSING THE APPEAL OF THE ASSESSEE FOR NON-APPEARANCE. 2. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO TH E MISCELLANEOUS APPLICATION ALONG WITH AFFIDAVIT OF THE CONCERNED C A OF ASSESSEE EXPLAINED THE REASONS FOR NON-APPEARANCE ON THE DAT E OF HEARING. HE 2 SUBMITTED THAT WHEN THE CASE WAS FIXED FOR HEARING ON 07-12-2012 THE CONCERNED CA OF THE ASSESSEE HAD ATTENDED AND SOUGH T ADJOURNMENT. HOWEVER, HE NOTED THE NEXT DATE OF HEARING AS 06-02 -2013 INSTEAD OF CORRECT DATE 05-02-2013 BECAUSE OF THE ABOVE THERE WAS NON- APPEARANCE ON THE APPOINTED DATE. HE SUBMITTED THA T IN THE INTEREST OF JUSTICE EXPARTE ORDER OF THE TRIBUNAL SHOULD BE REC ALLED AND THE ASSESSEE BE GIVEN AN OPPORTUNITY TO REPRESENT ITS C ASE. 3. AFTER HEARING BOTH THE SIDES, WE ARE SATISFIED T HAT THERE WAS A REASONABLE CAUSE ON THE PART OF THE ASSESSEE FOR NO N-APPEARANCE ON THE DATE OF HEARING. WE, THEREFORE, RECALL THE ORDER O F THE TRIBUNAL. SINCE THE LD.CIT(A) IN THE INSTANT CASE HAS APPLIED THE R ATIO OF DECISION OF THE TRIBUNAL IN THE CASE OF MULTI PLAN INDIA LTD. REPORTED IN 38 ITD 320 AND DISMISSED THE APPEAL OF THE ASSESSEE FOR NO N-APPEARANCE THE APPEAL WAS TAKEN UP FOR HEARING TODAY ITSELF. THER E WAS NO OBJECTION FROM EITHER SIDE FOR HEARING TODAY. ACCORDINGLY, T HE ORDER OF THE TRIBUNAL IS RECALLED AND THE APPEAL IS FIXED FOR HE ARING TODAY ITSELF. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ITA NO.1573/PN/2011 (A.Y.2007-08) : 4. THE ASSESSEE IN THE GROUNDS OF APPEAL HAS CHALLE NGED THE EXPARTE ORDER OF THE CIT(A) DISMISSING THE APPEAL O F THE ASSESSEE FOR NON-APPEARANCE BY APPLYING THE RATIO OF DECISION OF THE TRIBUNAL IN THE CASE OF MULTI PLAN INDIA PVT. LTD., REPORTED IN 38 ITD 320 AND THEREBY UPHOLDING THE ADDITION OF RS.27,44,223/- MADE BY TH E ASSESSING OFFICER. 3 5. THE L. COUNSEL FOR THE ASSESSEE REFERRING TO THE ORDER OF THE CIT(A) SUBMITTED THAT THE CIT(A) HAS PASSED THE EXP ARTE ORDER FOR NON-APPEARANCE BY APPLYING THE RATIO OF THE DECISIO N OF THE TRIBUNAL IN THE CASE OF MULTI PLAN INDIA PVT. LTD., REPORTED IN 38 ITD 320 AND VARIOUS OTHER DECISIONS. HE HAS NOT DECIDED THE IS SUE ON MERIT. HE ACCORDINGLY SUBMITTED THAT IN THE INTEREST OF JUSTI CE THE MATTER SHOULD BE SET-ASIDE TO THE FILE OF THE CIT(A) TO DECIDE TH E ISSUE ON MERIT AND AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. 6. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND WHILE SUPPORTING THE ORDER OF THE CIT(A) SUBMITTED THAT H E HAS NO OBJECTION IF THE MATTER IS RESTORED TO THE FILE OF THE CIT(A) FOR DECIDING THE ISSUE ON MERIT. 7. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE VARIOUS DECISIONS CITED BEFORE US. IN THE INSTANT CASE, WE FIND THE LD.CIT(A), APPLYING THE RATIO OF DECISION OF THE TR IBUNAL IN THE CASE OF MULTI PLAN INDIA PVT. LTD., REPORTED IN 38 ITD 3 20 AND VARIOUS OTHER DECISIONS HAS DISMISSED THE APPEAL FOR NON-APPEARAN CE. HE HAS NOT DECIDED THE ISSUE ON MERIT. IT HAS BEEN HELD BY VA RIOUS DECISIONS OF THE COORDINATE BENCHES OF THE TRIBUNAL THAT THE LD. CIT(A) HAS NO POWER TO DISMISS THE APPEAL FOR NON-APPEARANCE BY A PPLYING THE RATIO OF THE DECISION OF THE TRIBUNAL IN THE CASE OF MULT I PLAN INDIA PVT. LTD. (SUPRA). HE HAS TO PASS A SPEAKING ORDER BY DECIDI NG THE ISSUE ON MERIT. CONSIDERING THE TOTALITY OF THE FACTS OF TH E CASE AND IN THE INTEREST OF JUSTICE, WE RESTORE THE ISSUE TO THE FI LE OF THE CIT(A) WITH A DIRECTION TO DECIDE THE ISSUE AFRESH ON MERITS AFTE R GIVING A REASONABLE 4 OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOL D AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE AR E ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE MISCELLANEOUS APPLICATION BY THE ASSESSEE IS ALLOWED AND THE APPEAL FILED BY THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF, I.E. ON 6 TH DECEMBER, 2013 SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PAND A) JUDICIAL MEMBER ACCOUNTANT MEMBER SATISH PUNE DATED: 6 TH DECEMBER, 2013 COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-I, PUNE 4. CIT-I, PUNE 5. THE D.R, B PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCHES, PUNE