Shri Hasmukh Prabhulal Mehta, Ahmedabad V. The Income Tax Officer, Ward-1(2)(2), Ahmedabad

MA 16/AHD/2022

AI Insights

The case involves Shri Hasmukh P. Mehta, the appellant, who filed a Miscellaneous Application seeking the recall of an ex parte order dated 08.05.2019, which dismissed his appeal due to non-appearance. The appellant contended that he did not receive notice of the hearing or the order because he had changed his residence. The Tribunal, referencing Rule 24 of the ITAT Rules and previous judgments, found sufficient cause for the appellant's non-appearance and allowed the recall of the ex parte order, restoring the appeal for a fresh hearing on its merits.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 125628 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-08-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 03-08-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 11-05-2022
• Other Referred Cases: CIT vs. Multiplan India Pvt. Ltd., Golden Times Services P. Ltd. vs. W.P. (c) No. 402/2020, Devendra Kumar B. Chopra vs. DCIT
• Laws Referred To: Income Tax (Appellate Tribunal) Rules, 1963
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MEHUL K. PATEL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & Ms. MADHUMITA ROY, JUDICIAL MEMBER M . A. N o . 16/ A hd / 20 2 2 ( I n I TA N o . 1 01 0/ A hd/ 2 0 17 ) (A s se s s m e n t Y e a r : 2 0 12 - 1 3 ) Sh r i H as mu k h P r a bh ul a l Me ht a 1, K a lg i Ap ar t me nt , Ta m b oil i’ s no K h a n c ho , Do sh iw a da P ol e , K a lu p u r , Ah me da bad - 3 80 0 01 बनाम/ V s . T h e I n co me T a x O f f ic er Wa r d 1( 2 ) ( 2 ) , A h m ed a b a d थायी लेखा सं./जीआइआर सं./P A N / G I R N o . : A B D P M 3 4 0 3 D (अपीलाथ /Appellant) . . ( यथ / Respondent) अपीलाथ ओर से /Appellant by : Shri Mehul K. Patel, AR यथ क ओर से/Respondent by : Shri J. L. Bhatia, Sr. DR स ु नवाई क तार ख / D a t e o f H e a r i ng 04/08/2023 घोषणा क तार ख /D a t e o f P ro n o u nc e me n t 09/08/2023 O R D E R PER Ms. MADHUMITA ROY - JM: The Miscellaneous Application has been filed by the assessee seeking recall of the order dated 08.05.2019 passed by the Co-ordinate Bench in the appeal filed by the assessee being ITA No. 1010/Ahd/2017 for A.Y. 2012-13, whereby and - 2 - MA No. 16/Ahd/2022(in ITA No.1010/A/17) Shri Hasmukh P. Mehta vs. ITO Asst.Year – 2012-13 whereunder the matter was dismissed for default since none appeared on behalf of the assessee at the time of the call applying the ratio laid down in the case of CIT vs. Multiplan India Pvt. Ltd., reported in 38 ITD 320 (Delhi). 2. The assessee neither received the notice of hearing nor the copy of order passed by the ITAT as the assessee has changed the residence and shifted to a new residence and only upon inquiry from the Chartered Accountant about the proceeding, it was found that the matter was dismissed ex parte as is the main contention of the assessee. 3. Admittedly, the Miscellaneous Application is time barred by 893 days and the applicant before us taking recourse of Rule 24 of the ITAT Rules filed this application for recalling of the order passed by us on 08.05.2019. Rule 24 of ITAT Rules speaks as follows: “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 - 3 - MA No. 16/Ahd/2022(in ITA No.1010/A/17) Shri Hasmukh P. Mehta vs. ITO Asst.Year – 2012-13 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.” 4. The sum and substance of the said Rule is this that in the event, the matter is disposed of ex parte on merit and subsequently, if the assessee is able to show sufficient cause for non-appearance before the Bench at the time of call, ex parte order can be recalled and the main appeal can be restored for fresh hearing as per the Proviso to Rule 24 of IT Rules. Ld. AR further relied upon the judgment passed by the Hon’ble Delhi High Court in the case of Golden Times Services P. Ltd. in W.P. (c) No. 402/2020, wherein applying same analogy, the order of dismissal of the appeal ex parte dated 30.08.2019 stood quashed and the main appeal has been restored to the file of the ITAT by the ITAT with a direction to dispose of the same on merit. The said order was also relied upon by the Co- ordinate Bench in the matter of Devendra Kumar B. Chopra vs. DCIT in M.A. Nos. 159 & 160/Ahd/2020, on identical facts and circumstances of the case; the appeal so dismissed due to non-prosecution stood restored upon condonation of delay of 442 days. 5. We note that the Ld. DR has not been able to produce any judgment contrary to the finding made as discussed above. 6 In the instant case, we find merit in the explanation rendered by the assessee for not being able to appear before the Bench at the time of call on 08.05.2019 and thus, keeping in view the provision of Rule 24 of IT Rules, we allow this Miscellaneous Application upon condoning the delay of 893 days and restoring it for fresh hearing. The Registry is also directed to fix the matter on board for - 4 - MA No. 16/Ahd/2022(in ITA No.1010/A/17) Shri Hasmukh P. Mehta vs. ITO Asst.Year – 2012-13 hearing on 12 th September, 2023. Since, both the parties have entered appearance before us today, service of notice upon them is hereby dispensed with. 7. In the result, the Miscellaneous Application filed by the assessee is allowed. This Order pronounced on 09/08/2023 Sd/- Sd/- (WASEEM AHMED) (MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 09/08/2023 S. K. SINHA True Copy आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं%धत आयकर आय ु 'त / Concerned CIT 4. आयकर आय ु 'त(अपील) / The CIT(A). 5. *वभागीय -त-न%ध, आयकर अपील य अ%धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड3 फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ!धकरण, अहमदाबाद / ITAT, Ahmedabaditio