Sh. Dashan Kumar Singhal, Bathinda V. The Income Tax Officer, Bathinda

MA 16/ASR/2010

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9900 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-03-2013
• Assessment Year: 2001-2002
• Appeal Filed On: 22-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R L CHHANALIA

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER M.A. NO. 16 (ASR)/2010 (ARISING OUT OF I.T.A. NO. 445 (ASR)/2009) ASSESSMENT YEAR: 2001-02 PAN: AISPSO148K SH. DARSHAN KUMAR SINGHAL, THE INCOME-TAX OFFI CER, BATHINDA VS. WARD 1(1), BATHINDA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. ASHWANI KALIA, C.A. RESPONDENT BY: SH. R.L. CHHANALIA, D.R. DATE OF HEARING: 08.03.2013 DATE OF PRONOUNCEMENT: 11.03.2013 ORDER PER BENCH 1) THE ASSESSEE HAS FILED THE PRESENT MISCEL LANEOUS APPLICATION FOR RECALLING OF THE ORDER DATED 18.12.2009 PASSED BY T HIS BENCH IN WHICH THE BENCH HAS DISMISSED THE APPEAL OF THE ASSESSEE EX PARTE . 2) FOR THE SAKE OF CONVENIENCE THE CONTENTIONS RAIS ED BY THE ASSESSEE IN THE PRESENT MISCELLANEOUS APPLICATION A RE AS UNDER: TO INCOME TAX APPELLATE TRIBUNAL, 2 AMRITSAR BENCH, AMRITSAR. HON'BLE SIR REGARDING: MISC. APPLICATION U/S 254(2) IN THE CASE OF SH. DARSHAN KUMAR SINGHAL, BATHINDA IN I.T.A. NO. 445/ASR/2009 ASSESSMENT YEAR 2001-02. THE ABOVE SAID APPEAL WAS FIXED FOR HEARING BEFORE THE HON'BLE BENCH FOR 15.12.2009. OUR COUNSEL CA ASHWANI KALIA WHO W AS TO REPRESENT THE UNDERSIGNED BEFORE THE HON'BLE BENCH WAS SUFFERING FROM ACUTE BACK- ACHE AND WAS ADVISED COMPLETE BED REST BY THE PHYSI OTHERAPIST. CA ASHWANI KALIA HAD MADE A WRITTEN REQUEST TO THE HON 'BLE BENCH SEEKING ADJOURNMENT OF THE APPEAL ON THE GROUND THAT HE IS UNABLE TO APPEAR BEFORE THE HON'BLE BENCH ON ACCOUNT OF ACUTE BACK-A CHE AS A RESULT OF WHICH HE IS CONFINED TO BED. THAT THE SAID ADJOURNMENT APPLICATION WAS SENT BY M Y COUNSEL CA ASHWANI KALIA THROUGH HIS ASSISTANT ON THE DATE OF HEARING AND THE SAME WAS DULY HANDED OVER TO THE BENCH CLERK BY HIM MUCH BEFORE THE START OF THE BENCH. HOWEVER, TO MY UTTER SURPRISE, THE HON' BLE BENCH WITHOUT CONSIDERING THE ADJOURNMENT APPLICATION HAS DECIDED THE APPEAL EX PARTE AND DISMISSED MY APPEAL. COPY OF THE SAID ADJOURNME NT LETTER IS ENCLOSED FOR YOUR HONOURS READY REFERENCE. IT SEEMS THAT EITHER THE ADJOURNMENT APPLICATION WA S NOT PUT UP BEFORE HON'BLE BENCH OR IT SKIPPED THE ATTENTION OF THE HO N'BLE BENCH. THERE IS MENTION IN THE ORDER OF THE HON'BLE BENCH AS TO FIL LING OF THE ADJOURNMENT APPLICATION AND REJECTION OF THE SAME BY THE HON'BL E BENCH. THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED WITHOUT ALLOWING PROPER OPPORTUNITY TO THE APPELLANT. IN THE INTEREST OF JUSTICE IT IS REQUESTED THAT THE EX PARTE ORDER FRAMED BY HON'BLE BENCH, DISMISSING THE APPEAL, MAY KINDLY BE RECALLED AND FRESH OPPORTUNITY MAY KINDLY BE ALLOWED TO REPRESENT THE CASE PROPERTY BEFORE THE HON'BLE BENCH. THANKING YOU YOURS FAITHFULLY 3 AMRITSAR THE SD/./- 15 TH FEBRUARY, 2010 DARSHAN KUMAR SINGHAL APPELLANT 3) IN SUPPORT OF THE SAID MISCELLANEOUS APPLICATIO N SH. ASHWANI KALIA, LEARNED CHARTERED ACCOUNTANT, HAS ALSO FILED HIS AFFIDAVIT DATED 7 TH MARCH, 2013 AS DIRECTED BY THE BENCH. THE CONTENTS OF THE AFFIDAVIT OF SRI ASHWANI KALIA ARE AS UNDER: AFFIDAVIT OF ASHWANI KALIA I, ASHWANI KALIA S/O SH. D.P. KALIA, RESIDENT OF 23 7 BASANT AVENUE, MAQBOOL ROAD, AMRITSAR DO HEREBY SOLEMNLY AFFIRM AN D DECLARE AS UNDER:- 1) THAT I AM PRACTICING AS CHARTERED ACCOUNTANT. 2) THAT I HAVE BEEN ENGAGED BY SH. DARSHAN KUMAR SINGH AL OF BATHINDA TO REPRESENT HIS APPEAL BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL, AMRITSAR IN I.T.A. NO.445 OF 20 09. 3) THAT THE ABOVE SAID APPEAL WAS FIXED FOR HEARING BE FORE THE HON'BLE BENCH FOR 15.12.2009. 4) THAT ON THE DATE OF HEARING, I WAS NOT KEEPING WELL DUE TO ACUTE BACK-ACHE AS A RESULT OF WHICH I WAS ADVISED COMPLE TE BED REST. 5) THAT I APPLIED FOR ADJOURNMENT OF THE ABOVE APPEAL THROUGH AN ADJOURNMENT LETTER WHICH WAS HANDED OVER TO THE BEN CH CLERK BY MY ASSISTANT ON THE DATE OF HEARING. ASHWANI KALIA SD/./- (DEPONENT) VERIFICATION I, ABOVE NAMED ASHWANI KALIA HEREBY VERIFY THAT WHA TEVER IS STATED ABOVE IS TRUE AND CORRECT TO THE BEST OF MY KNOWLED GE AND BELIEF. ASHWANI KALIA 4 SD/./- (DEPONENT) 4) AFTER GOING THROUGH THE CONTENTIONS RAISED BY THE ASSESSEE IN THE MISCELLANEOUS APPLICATION AND IN TH E AFFIDAVIT FILED BY SH. ASHWANI KALIA, LEARNED COUNSEL FOR THE ASSESSEE, AS WELL AS THE RECORD OF THIS CASE, WE FIND THAT THERE IS ONE APPLICATION DA TED 15 TH DECEMBER, 2009 WRITTEN BY SH. ASHWANI KALIA, CA, IS AVAILABLE ON R ECORD WHICH HAS BEEN OVERLOOKED BY THE BENCH AT THE TIME OF PASSING THE ORDER DATED 18 TH DECEMBER, 2009. THIS BENCH HAS WRITTEN IN ITS ORDER THAT IN THE COURSE OF PRESENT APPELLATE PROCEEDINGS, NONE ATTENDED ON BEH ALF OF THE ASSESSEE DESPITE PROPER OPPORTUNITY GIVEN TO HIM. IN FACT, S H. ASHWANI KALIA, THE ASSESSEES COUNSEL, HAS FILED REQUEST FOR ADJOURNME NT ON THE GROUND THAT HE WAS HAVING ACUTE BACK-ACHE, AS A RESULT OF WHICH HIS MOVEMENTS ARE TOTALLY RESTRICTED AND HAVE BEEN ADVISED REST FOR A T LEAST 10 DAYS. THUS, HE REQUESTED THAT THE APPEAL MAY KINDLY BE TAKEN IN TH E NEXT MONTH. BUT THE SAME APPLICATION HAS BEEN OVERLOOKED DUE TO SOME UN INTENTIONAL REASON AT THE TIME OF PASSING THE ORDER RESULTING THEREBY THE ASSESSEE HAS BEEN DEPRIVED OF AFFORDING OPPORTUNITY OF HEARING TO RE PRESENT HIS CASE BEFORE THE BENCH WHICH IS AN APPARENT MISTAKE OF THE COURT AND DESERVES TO BE RECTIFIED BY RECALLING THE ORDER DATED 18.10.2009. 5 5) IN THE INTEREST OF JUSTICE WE ARE RECALLING THE ORDER DATED 18.10.2009 WHICH THIS BENCH HAD DECIDED AGAINST THE ASSESSEE WITHOUT GIVING OPPORTUNITY OF HEARING TO HIM. THEREFORE, WE RECALL THE EX PARTE ORDER DATED 18 TH DECEMBER, 2009 BY ACCEPTING THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE WITH A DIRECTION TO THE REGISTRY TO FIX THIS APPEAL I.E. I.T.A. NO. 445 (ASR) OF 2009 FILED BY THE ASSESSEE IN DUE COURSE. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH MARCH, 2013 SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 11 TH MARCH , 2013 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SH. DARSHAN KUMAR SINGHAL, BATHINDA 2. THE INCOME-TAX OFFICER, WARD 1(1), BATHINDA 3. THE CIT(A), BATHINDA 4. THE CIT, BATHINDA 5. THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.