SHRI SURESH KUMAR MITTAL, L/H SHRI DEVI SAHAI MITTAL, JAIPUR V. INCOME TAX OFFICER, WARD-1-2, JAIPUR

MA 155/JPR/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5708 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 15-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM ROY
• Assessee Lawyers: NIKHILESH KATARIA
• Keywords: Question of law; Reasonable cause

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER M.A. NO. 155/JP/2017 (ARISING OUT OF ITA NO. 726/JP/2017) FU/KZKJ.K O'KZ @ ASSESSMENT YEAR: 2008-09 SURESH KUMAR MITTAL, L/H- SHRI DEVI SAHAI MITTAL, PROP.- M/S SURESH KUMAR & COMPANY, RADHA DAMODAR KI GALI, JAIPUR. CUKE VS. ITO, WARD 1(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ACFPM 8506 N VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI NIKHILESH KATARIA (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT. POONAM ROY (DCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 19/01/2018 MN?KKS'K.KK DH RKJH[ K @ DATE OF PRONOUNCEMENT: 23/01/2018 VKNS'K @ ORDER PER: BHAGCHAND, A.M. THE ASSESSEE HAS FILED THE PRESENT MISC. APPLICATIO N ON 06/12/2017 AGAINST THE ORDER OF THE ITAT, JAIPUR BENCH, JAIPUR DATED 07/11/2017 PASSED IN ITA NO. 726/JP/2017 FOR THE ASSESSMENT YE AR 2008-09. 2. IN THIS CASE, THE ASSESSEE FILED APPEAL VIDE ITA NO. 726/JP/2017 FOR THE ASSESSMENT YEAR 2008-09 AGAINST THE ORDER OF LE ARNED CIT(A)-1, M.A. NO. 155/JP/2017 SURESH KUMAR MITTAL VS ITO 2 JAIPUR DATED 26/07/2017. THIS BENCH OF THE ITAT, JAIP UR HAS DECIDED THE APPEAL IN ABSENCE OF THE ASSESSEE AND DISMISSED THE ASSESSEES APPEAL. 3. THE ASSESSEE FILED THIS MISC. APPLICATION AND EXP LAINED THE REASONS AS TO WHY THE HEARING OF APPEAL ON 06/11/2017 COULD NOT BE ATTENDED. THE ASSESSEE HAS SUBMITTED AS UNDER: 1. THE APPEAL IN THE CASE OF ASSESSEE WAS DECIDED I N ITA NO. 726/JP/2017 VIDE ORDER DATED 07.11.2017. THE HONBL E TRIBUNAL HOWEVER DECIDED THE SAID APPEAL ON THE GROUND THAT NONE WAS PRESENT FOR ASSESSEE ON THE DATE OF HEARING OF APPE AL AND BY FOLLOWING THE DECISION OF DELHI BENCH OF ITAT IN TH E CASE CIT VS. MULTIPLAN INDIA PVT. LTD. AND ALSO ESTATE OF LATE TU KOJIRAO HOLKAR VS. CWT, 223 ITR 480 (MP), THE APPEAL WAS NOT ADMIT TED AND WAS DISMISSED FOR NON-APPEARANCE. 2. IT IS RESPECTFULLY SUBMITTED THAT THE ASSESSEE H AS FILED THE APPEAL BEFORE THE HONBLE BENCH ON DATED 27.09.2017 AND TH E DATE OF FIRST HEARING I.E. 06.11.2017 WAS WRITTEN IN THE ACKNOWLE DGEMENT OF THE APPEAL ITSELF, A COPY OF WHICH IS ENCLOSED HEREWITH . DUE TO OVERSIGHT, THE ACKNOWLEDGEMENT WAS PUT IN THE FILE BY THE OFFICE STAFF MR. AJAY WITHOUT INTIMATING THE DATE OF FIXAT ION. IT IS ALSO SUBMITTED THAT MR. AJAY IS NOT CONVERSANT WITH THE PROCEEDINGS BEFORE THE HONBLE ITAT. THE AR REMAINED UNDER A B ONAFLDE IMPRESSION THAT A SEPARATE NOTICE WOULD COME FIXING THE APPEAL. IN THESE CIRCUMSTANCES, THE ASSESSEE WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE FROM APPEARING BEFORE THE HONBLE TRIBUNAL ON THE APPOINTED DATE. THE ASSESSEE DEFINITELY INTENDS TO PURSUE THE SAID MATTER IN APPEAL. M.A. NO. 155/JP/2017 SURESH KUMAR MITTAL VS ITO 3 3. IN THESE CIRCUMSTANCES, IT IS REQUESTED THAT THE SAID APPEAL SUBMITTED BY THE APPELLANT MAY KINDLY BE RECALLED A ND BE DECIDE ON MERITS OF THE CASE. 4. IT WOULD ALSO BE WORTHWHILE TO MENTION THAT IN T HE CASE OF CIT V. MULTIPLAN LTD. REPORTED IN 38 ITD 320, THE DELHI BE NCH HAVE CONSIDERED TWO DECISIONS NAMELY SHRI BHAGWAN RADHAK ISHAN V. CIT REPORTED IN 22 ITR 104 (ALL) AND MANGATRAM KUTHIALA V. CIT REPORTED IN 38 ITR 1 (PUN). IT IS RESPECTFULLY SUBM ITTED THAT THE DECISION IN THE CASE OF SHRI BHAGWAN RADHAKISHAN RE PORTED IN 22 ITR 104 HAS BEEN OVERRULED BY THE HONBLE SUPREME C OURT IN THE CASE OF CIT V. S. CHENNAIAPPA MUDALIAR REPORTED IN 74 ITR 41 AND DECISION IN THE CASE OF MANGATRAM KUTHIALA REPORTED IN 38 ITR 1 HAS BEEN CONSIDERED AS NOT RELEVANT TO THE APPEAL B EFORE INCOME TAX APPELLANT TRIBUNAL. IN THE SAID JUDGEMENT OF S. CHENNIAPPA MUDALIAR AT PAGE 47, THEIR LORDSHIP HAVE HELD THAT THE DECISION OF MANGATRAM K UTHIALA RELATES TO THE ARTICLES 226 AND 227 OF THE CONSTITUTION AND IT DOES NOT APPEARS TO HAVE VALIDITY TO RULE 24 OF THE INCOME T AX TRIBUNAL. 5. IT IS RESPECTFULLY SUBMITTED THAT IN VIEW OF THE AFORESAID DECISION OF HONBLE SUPREME COURT, THE RELIANCE PLACED ON THE D ECISION RELIED UPON WHILE DISMISSING THE MISC. APPLICATION WAS NOT JUSTIFIED. IT IS ALSO RESPECTFULLY SUBMITTED THAT HONBLE THIRD MEMB ER BENCH IN THE DECISION OF PARTH MITRA VS. ITO 161 ITD 25 (KOL) (T M) HAS FOLLOWED THE ABOVE DECISION OF HONBLE SUPREME COURT. 6. YOUR KIND ATTENTION IS ALSO INVITED TOWARDS THE DECISION OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF TRIBHUWAN KUMAR AND OTHERS REPORTED IN (2007) 294 ITR 401 (RAJ) IN WHICH IN AN IDENTICAL M.A. NO. 155/JP/2017 SURESH KUMAR MITTAL VS ITO 4 QUESTION OF LAW WAS CONSIDERED AND THE HONBLE COUR T OBSERVED AS UNDER: WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE INCOME TAX TRIBUNAL WAS JUSTIFIED IN DISMISSING THE APPEAL PREFERRED BY THE PRESENT APPELLANT AS NOT MAINTAINA BLE IN VIEW OF RULE 19 AND 20 OF THE INCOME TAX (APPELLATE TRIB UNAL) RULES, 1963, AND THE DECISION OF THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH IN THE CASE OF CIT V. MULTIPLAN INDIA P . LTD. (1991) 38 ITD 320?' ON THE AFORESAID QUESTION THE HONBLE HIGH COURT H ELD AS UNDER: HAVING CONSIDERED THE AFORESAID THREE PROVISIONS, WE ARE UNABLE TO COMPREHEND THE VIEW OF THE TRIBUNAL THAT THE ASSESSEES APPEAL WAS NOT MAINTAINABLE IN VIEW OF R ULES 10 AND 20 OF THE RULES. SURELY THE APPEAL PREFERRED BY THE ASSESSEE WAS COMPONENT UNDER SECTION 253 OF THE INCOME TAX A CT. HOW, IN THE CIRCUMSTANCES THE TRIBUNAL COULD HOLD THAT T HE ASSESSEES APPEAL FORM THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT MAINTAINABLE WHEN THE APPEAL LAY FROM THE SAID ORDER. THE TRIBUNAL MISREAD AND MISAPPLIED RUL ES 10 AND 20 OF THE RULES OF 1963, IN HOLDING THAT THE ASSESS EES APPEAL WAS NOT MAINTAINABLE. IF FOR ANY REASON, THE ASSESS EE WAS NOT BEING REPRESENTED ON THE DATE OF HEARING, THE TRIBU NAL COULD HAVE PROCEEDED FOR HEARING OF THE APPEAL EX-PARTE P ROVIDED IN RULE 24 BUT THAT WAS NOT DONE. THE APPEAL SHOULD HA VE BEEN HEARD ON THE MERITS AND THE TRIBUNAL ERRONEOUSLY HE LD THAT THE ASSESSEES APPEAL IS NOT MAINTAINABLE IN LAW. WE ACCORDINGLY SET ASIDE THE ORDER DATED OCTOBER, 9, 2002 IN SO FAR AS THE TRIBUNAL DISMISSED THE APPEAL, BEING ITS WA NO. 112/JP/2001 AS NOT MAINTAINABLE. APPEAL NO. 112/JP/ 2011 IS RESORTED TO THE FILE OF THE INCOME TAX APPELLATE TR IBUNAL ON THE APRIL, 20, 2007. NO COSTS. M.A. NO. 155/JP/2017 SURESH KUMAR MITTAL VS ITO 5 7. IT IS THEREFORE VERY HUMBLY PRAYED THAT ORDER PA SSED IN ITA NO. 726/JP/2017 FOR A.Y. 2008-09 VIDE ORDER DATED 07.11 .2017 MAY KINDLY BE RECALLED. 4. ON THE OTHER HAND, THE D.R. HAS NOT RAISED ANY O BJECTION IF THE HONBLE BENCH RECALL THE EX PARTE ORDER DATED 07/11 /2017. 4. IN VIEW OF THE SUBMISSION OF THE ASSESSEE THAT DU E TO OVERSIGHT, THE ACKNOWLEDGEMENT WAS PUT IN THE FILE BY THE OFFICE ST AFF MR. AJAY WITHOUT INTIMATING THE DATE OF FIXATION. MR. AJAY WAS NOT CO NVERSANT WITH THE PROCEEDINGS BEFORE THE HONBLE ITAT, DUE TO WHICH, TH E LD AR COULD NOT APPEAR BEFORE THE BENCH. AFTER CONSIDERING ALL THES E FACTS AND CIRCUMSTANCES AND IN THE INTEREST OF JUSTICE, I REC ALL ORDER DATED 07/11/2017 PASSED BY THIS BENCH IN ITA NO. 726/JP/2 017. ACCORDINGLY THE PRESENT M.A. FILED BY THE ASSESSEE IS ALLOWED. THE RE GISTRY IS DIRECTED TO FIX THE CASE AS PER REGULAR HEARING. 5. IN THE RESULT, THE PRESENT MISC. APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23/01/2018. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ TK;IQJ TK;IQJ TK;IQJ @ @@ @ JAIPUR FNUKAD @ DATED:- 23 RD JANUARY, 2018 *RANJAN M.A. NO. 155/JP/2017 SURESH KUMAR MITTAL VS ITO 6 VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI SURESH KUMAR MITTAL, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 1(2), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDR @ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (M.A. 155/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR