Shri Devendrakumar B. Chopra, Ahmedabad V. The Dy.CIT, Circle-10, Ahmedabad

MA 159/AHD/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5225 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 14-10-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Question of law
• Section: 260A

Judgement Text

, ‘SMC’ । IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, AHMEDABAD (Convened through Virtual Court) BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMEBR & SMT. ANNAPURNA GUPTA, ACCOUNTANT MEMEBR MISCELLANEOUS APPLICATION Nos. 159 & 160/Ahd/2020 (in ITA No. 319/Ahd/2014 & 3009/Ahd/2015) ( Assess ment Ye ars : 2 010-11 & 2011-12) De ve nd ra K u mar B. Ch op ra 2 n d Fl oo r, C a mex H ou se, Sta di u m Co mme rc e R oad , Na vra ng pu ra , Ah m eda ba d / V s . De pu ty C o mmi ss io ner o f In co me T ax Cir cl e- 10 , Ah me da bad / /P A N / G IR N o . : A A O P C 8 6 2 3 P ( Appellant) . . ( / Respondent) /Appellant by : Sh ri M. K . Pa te l, A dv oca te / Respondent by : Shri S. S. Shukla, Sr. D.R. D a t e o f H e a r i n g 04/02/2022 !"# /D a t e o f P r o n o u n c e m e n t 10/02/2022 ORDER PER MAHAVIR PRASAD, JM: These miscellaneous applications have been filed by the assessee. But, both the miscellaneous applications are time barred by 442 days. As either assessee or his AR could not appear before the Bench, therefore, matter was dismissed on account of non-prosecution on 24.01.2019. MA Nos. 159 & 160/Ahd/2020 [Shri Devendra Kumar B. Chopra vs. DCIT] AY 2010-11 & 2011-12 - 2 - 2. The Ld. AR argued that Rule 24 contemplates as under: “24. Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorised representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent : Provided that where an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance, when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex parte order and restoring the appeal. A bare perusal of Rule 24 supra reveals that in case the Hon'ble Tribunal disposes off any appeal on merits after hearing the respondent and later, assessee satisfies the Hon'ble Tribunal that there was a "sufficient cause" for his non-appearance, then the Tribunal shall pass an order setting aside the ex-parte order and restore the appeal. Hence, firstly, the Hon'ble Tribunal ought to have disposed of the appeal on merits. Secondly, the Assessee having already explained "sufficient cause" for non-appearance before Hon'ble Tribunal here- in-above and hence, in light of Proviso to Rule 24 of The Income Tax (Appellate Tribunal) Rules, 1963, the ex-parte order passed by Hon’ble ITAT deserves to be set-aside and the main appeal deserves to be restored.” 2.1 Learned AR also filed a copy of Hon’ble Delhi High Court’s order in the case of Golden Times Services P. Ltd. W.P.(c) No. 402/2020, wherein it is held that: “16. Pertinently, adjudication on the merits of the case by the ITAT is essential for this Court to hear an appeal and the ITAT could not have dismissed the same solely on account of non-appearance of a party. As a result, as of today, the petitioner company is faced with the situation where it cannot exercise its remedy of filing the statutory appeal under Section 260A of the Act, since order dated 18.10. 2016, dismissing the appeal of the appellant, does not adjudicate on the merits of the case. For the assessee to file an appeal under the said provision before this Court, it is required to satisfy that the case involves a substantial question of law. As the order is not touching upon the merits of the case, it deprives this Court to evaluate, if any, substantial question of law under Section 260A of the Act arises on merits, thereby impinging upon assessee's right to get the issue decided by the final fact finding authority. Thus, the approach adopted by the ITAT in dismissing the application for recall of an order, cannot be countenanced, particularly, since Rule 24 of the ITAT Rules, extracted hereinabove mandates the ITAT to decide the appeal on merits. In fact this approach has rendered the liberty granted in the order dated 18th October, MA Nos. 159 & 160/Ahd/2020 [Shri Devendra Kumar B. Chopra vs. DCIT] AY 2010-11 & 2011-12 - 3 - 2016 as nugatory. The sufficient cause for non-appearance of the petitioner company at the time of disposal of the appeal, as provided in the proviso to Rule 24 of the ITAT Rules has also lost its meaning because of the approach adopted by the ITAT, especially, when there is no limitation provided in Rule 24 of the ITAT Rules. The ITAT has chosen to rely upon its own decision in Commissioner of Income-Tax vs. Multi Plan India (P) Ltd. 38 ITD 320 (Del) and Estate of Late Tukojirao Holkar vs. CWT: 223 ITR 480 (M.P), which is completely misplaced. The ITAT has misread the provision of law and has erroneously dismissed the application for recall. It was necessary for the ITAT to exercise its jurisdiction and afford an opportunity of rehearing the appeal that had been dismissed in the absence of the appeal. Even otherwise, we are of the view that it was the duty and obligation of the ITAT to dispose of the appeal on merits after giving both the parties an opportunity of being heard. The ITAT should have been conscious of the fact that the appellant was not afforded the opportunity to argue the case on merits and for this reason it had given the liberty to apply afresh, while dismissing the appeal for non-prosecution. There was thus no cogent reason for the tribunal not to entertain the application for recall. The ITAT has ignored the decision of the Supreme Court in CIT vs. S.Chenniappa Mudaliar (supra) in the correct perspective. 17. For the foregoing reasons, the course adopted by the ITAT at the first instance, by dismissing the appeal for non-prosecution, and then compounding the same by refusing to entertain the application for recall of the order, cannot be sustained. We, therefore have no hesitation in quashing the impugned order. Accordingly, the present petition is allowed. The order dated 30.08.2019 is quashed and the matter is remanded back to the ITAT with a direction that they shall hear and dispose of ITA No. 6739/De1/2014 on merits. The parties shall now appear before the ITAT on 05.02.2020. The registry is directed to send a copy of this order to the ITAT.” 2.2 Learned AR also filed a copy of ITAT Visakhapatnam Bench in M.A. Nos. 03 to 09/Viz/2018 & M.A. No.10/Viz/2018, Arunachalam Manickavel vs. DCIT & Anr. Order dated 16.11.2018, wherein in similar facts and circumstances, miscellaneous applications were allowed by the Tribunal. 3. Since, both the appeals were dismissed on account of non prosecution and there is a delay of 442 days, after considering the ITAT order and respectfully following the Hon’ble Delhi High Court judgment, same is condoned. MA Nos. 159 & 160/Ahd/2020 [Shri Devendra Kumar B. Chopra vs. DCIT] AY 2010-11 & 2011-12 - 4 - 4. Registry is directed to list these matters on 31/03/2022 under the intimation to both the parties for regular hearing of the matter. 5. In the result, both the miscellaneous applications filed by the Assessee are allowed. Sd/- Sd/- ( ANNAP UR NA GUP TA) (MAHAVIR PRASAD) ACC OUNTANT MEMB ER JUDICIAL MEMBER Ahmedabad: Dated 10/02/2022 True Copy S.K.SINHA ेश ! " #े" / Copy of Order Forwarded to:- $ / Revenue 2 द / Assessee ' ( )* + / Concerned CIT 4 + - / CIT (A) . / 0 1 2 2 )*3 )* #3 45द ( द / DR, ITAT, Ahmedabad 6 1 78 9 / Guard file. By order/ द श 3 उ / 4 )* #3 45द ( द । This Order pronounced in Open Court on 10/02/2022