M/s. Horizon Buildcon Pvt. Ltd, Jammu V. The Dy. Commissioner Income-tax, Jammu

MA 16/ASR/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0340 (ITAT-AMRITSAR)
• Duration Of Justice: 11 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 31-07-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P N ARORA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE SH. LALIET KUMAR, JUDICIAL MEMBER AND DR. M. L. MEENA, ACCOUNTANT MEMBER M. A. NOS. 16 TO 18/ASR/2020 (IN I.T.A. NOS. 671 TO 673/ASR/2014) ASSESSM ENT YEARS: 2009-10 TO 2011-12 M/S HORIZON BUILDCON PVT. LTD., 71/4, TRIKUTA NAGAR, JAMMU [PAN: AABCH 9269A] (APPELLANT) VS. DY. C. I. T., CENTRAL CIRCLE, JAMMU (RESPENDENT) M. A. NO. 15/ASR/2020 (IN I.T.A. NO. 434/ASR/2016) ASSESSMENT YEAR: 2009-10 I.T.O., WARD-5(5), AMRITSAR (APPELLANT) VS. SH. SURJIT SINGH, 29-D, GURU AMAR DASS AVENUE, AJNALA ROAD, AMRITSAR [PAN: ALNPS 4128D] (RESPENDENT) APPELLANT BY SH. P. N. ARORA, ADV., & PRADEEP GANDOTRA, C.A., DALJIT SINGH, C.A. RESPONDENT BY SMT. RATINDER KAUR, D. R. DATE OF HEARING 09.07.2021 DATE OF PRONOUNCEMENT 12.07.2021 M.A. NOS. 16 TO 18 & 15/ASR/2020 2 ORDER PER LALIET KUMAR, J.M. IN THE PRESENT MISCELLANEOUS APPLICATIONS, WERE FIL ED BY THE ASSESSEE FOR RECALLING THE ORDER PASSED BY THE TRIBUNAL ON 30.06 .2020 WHEREBY THE TRIBUNAL HAD DISMISSED THE APPEAL OF THE ASSESSEE ON MERIT, AS T HE ASSESSEE HAS NOT APPEARED ON THE DATE OF THE HEARING ON 06.02.2020. 2. THE LD. AR FOR THE ASSESSEE HAD DRAWN OUR ATTENT ION TO THE LETTER DATED 2 ND FEBRUARY, 2020 WRITTEN BY THE ASSESSEE THROUGH EMAI L ON 3 RD FEBRUARY 2020 WHEREBY THE LD. AR FOR THE ASSESSEE HAD REQUESTED F OR THE GRANT OF ADJOURNMENT IN ITA NOS. 671, 672 & 672/ASR/2014. 3. THE ORDER SHEET OF THE APPEAL FILED REVEALS THAT INITIALLY THE MATTER WAS FIXED FOR 05.02.2020, HOWEVER THE TRIBUNAL HAD NOTED THAT NONE WAS AVAILABLE ON THAT DAY ON BEHALF OF THE ASSESSEE. FURTHER, WE FOUND FR OM THE RECORD OF THE CASE, THOUGH THE APPLICATION FOR THE ADJOURNMENT WAS RECE IVED THROUGH EMAIL HOWEVER THE SAME HAS NOT BEEN BROUGHT TO THE NOTICE OF THE TRIBUNAL ON 05.02.2020 AND THEREFORE THE MATTER WAS ADJOURNED TO 06.02.2020. ON 06.02.2020, NONE WAS AVAILABLE ON THE DATE OF HE ARING, AS THE A NEXT DATE OF HEARING WAS NOT COMMUNICATED TO THE ASSESSEE BY THE REGISTRY , IN THESE FACTS THE TRIBUNAL AFTER PROCEEDING EX- PARTE AGAINST THE ASS ESSEE HAS ALLOWED THE APPEAL FILED BY THE REVENUE BY UPHOLDING THE ORDER PASSED BY THE ASSESSING OFFICER. 4. THE PERUSAL OF THE ORDER DATED 30.06.2020 MORE P ARTICULARLY PARAGRAPH 2 SHOWS THAT NONE WAS PRESENT ON THE DATE OF HEARING, I.E., ON 6 TH FEBRUARY, 2020. M.A. NOS. 16 TO 18 & 15/ASR/2020 3 5. ON THE BASIS OF THE ABOVE SAID FACTS, IT WAS THE CONTENTION OF THE LD. AR THAT THE ORDER PASSED BY THE TRIBUNAL ON 30.06.2020, IS REQUIRED TO BE RECALLED. 6. PER CONTRA, THE LD. DR FOR THE REVENUE, RELIED U PON THE ORDER PASSED BY THE TRIBUNAL AND IT WAS SUBMITTED THAT THE TRIBUNAL WAS RIGHT IN DISMISSING THE APPEAL OF THE ASSESSEE ON MERIT AS THERE WAS FAILURE ON TH E PART OF THE ASSESSEE TO APPEAR ON THE DATE FIXED FOR HEARING. 7. WE HAVE HEARD THE RIVAL CONTENTION THE PARTIES A ND PERUSED THE MATERIAL AVAILABLE ON RECORD. UNDOUBTEDLY THE APPELLANT HAS INTIMATED THE BENCH WELL IN ADVANCE VIDE EMAIL DATED 3 RD FEBRUARY, 2020 AND HAD REQUESTED FOR THE ADJOURNMENT OF THE APPEAL FIXED ON 5 JULY 2020. FUR THER THE RECORD SHOWS THAT AN AFFIDAVIT WAS ALSO FILED BY THE ASSESSEE STATING TH EREIN THAT THE AR OF THE ASSESSEE WAS NOT IN POSITION TO ATTEND THE HEARING. IN THE E MAIL DATED 3 FEBRUARY 2020 IT WAS REQUESTED TO ADJOURN THE MATTER IN THE FOURTH WEEK OF FEBRUARY, 2020. UNFORTUNATELY, THE ABOVE SAID COMMUNICATION SENT BY THE ASSESSEE WAS NOT BROUGHT TO THE NOTICE OF THE BENCH BY THE REGISTRY OF THE T RIBUNAL AT THE TIME OF HEARING ON 5 TH FEBRUARY, 2020. 8. IT IS THE MATTER OF RECORD THAT ON 5 TH FEBRUARY, 2020 THE MATTER WAS ADJOURNED TO 06.02.2020 FOR HEARING. FURTHER WE NOTICE THAT N O NOTICE WAS HEARING WAS GIVEN BY THE REGISTRY TO THE ASSESSEE ON 5 TH FEBRUARY, 2020 FOR INTIMATING THE ASSESSEE THAT THE MATTER WOULD BE HEARD ON 6 TH FEBRUARY, 2020. IN OUR CONSIDERED OPINION IT IS TH E DUTY OF THE ASSESSEE TO ENQUIRE FROM THE TRIBUNAL A BOUT THE FATE OF THE REQUEST MADE BY THE ASSESSEE FOR THE JUDGEMENT. NEEDFUL WAS NOT DONE BY THE ASSESSEE ON 5 TH OF FEBRUARY 2020, NONE THE LESS THE FACT REMAINED THAT THE ASSESSEE WAS NOT AWARE ABOUT THE FIXATION OF THE DATE ON 6 TH OF FEBRUARY 2020. M.A. NOS. 16 TO 18 & 15/ASR/2020 4 9. FURTHER WE HAVE GONE THROUGH THE RULE 25 OF APPE LLATE TRIBUNAL RULES 1965 WHICH PROVIDES THAT IN ANY CASE, IF THE RESPONDENT DOES NOT APPEAR ON THE DATE FIXED FOR HEARING OR ANY OTHER DATE TO WHICH HEARI NG MAY BE ADJOURNED, THEN THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERIT AFTER H EARING THE APPELLANT HOWEVER THE ABOVE SAID RULES WAS SUBJECT TO THE EXCEPTION T HAT IF THE RESPONDENT APPEARS AFTERWARDS AND SATISFY THAT THERE WAS SUFFICIENT RE ASON FOR NON-APPEARANCE THAN THE TRIBUNAL MAY RECALL THE EX-PARTE ORDER AND RESTORE THE APPEAL BACK TO ITS ORIGINAL POSITION AND NUMBER. 9. IN THE PRESENT CASE, AS MENTIONED HEREINABOVE TH E ASSESSEE VIDE EMAIL DATED 3 RD FEBRUARY, 2020 HAD INTIMATED TO THE REGISTRY/ BENC H FOR ADJOURNMENT OF APPEALS FOR ANY OTHER SUITABLE DATE IN THE FOURTH WEEK OF F EBRUARY, 2020, HOWEVER THE ABOVE SAID FACT HAD NOT BEEN BROUGHT TO THE NOTICE OF THE BENCH. FURTHER THE NEXT DATE OF HEARING, I.E., 6 TH FEBRUARY, 2020 WAS ALSO NOT COMMUNICATED TO THE AS SESSEE INTIMATING THAT THE MATTER WOULD BE HEARD ON 6 TH FEBRUARY, 2020. 10. IN OUR VIEW, IF THE ABOVE SAID FACTS WOULD HAV E BEEN BROUGHT TO THE NOTICE OF THE BENCH ON ABOVE 5 TH FEBRUARY, 2020, AND ON 6 TH FEBRUARY, 2020 THEN, TRIBUNAL WOULD NOT HAVE PASSED THE EX-PARTE ORDER AGAINST TH E RESPONDENT ASSESSEE. CONSIDERING THE PECULIARITY OF THE FACTS AND THE EM AIL ON RECORD AND THE REQUEST FOR ADJOURNING THE MATTER COUPLED WITH THE CERTIFICATE OF THE DOCTORS WHEREBY SH. DALJIT SINGH MARWAHA WAS IN DISPOSED OF , WE ARE OF THE OP INION THAT THE ORDER PASSED BY THE TRIBUNAL ON 30.06.2020 IS REQUIRED TO BE RECAL LED, AS IT WAS PASSED WITHOUT HEARING THE ASSESS AND AR OF THE ASSESSEE WAS PREVE NTED FROM APPEARING ON THE ABOVE DATES . ACCORDINGLY, THE MISCELLANEOUS APPLIC ATIONS OF THE ASSESSEE ARE REQUIRED TO BE ALLOWED. WE ALLOWED THE SAME. M.A. NOS. 16 TO 18 & 15/ASR/2020 5 IN THE RESULT ALL THE APPEALS OF THE ASSESSEE BEAR ING NOS. 671, 672 & 673/ASR/2014 ALONG WITH THE APPEAL NO. 434/ASR/2016 ARE RESTORED BACK TO THE SAME POSITION IN SITU AS THEY WERE BEFORE THE DISPOSAL OF THE APPEAL S. 10. REGISTRY IS DIRECTED TO FIX THE APPEALS IN DUE COURSE. NO ORDER AS TO BE PASSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12.07.2021 SD/- SD/- (DR. M. L. MEENA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12.07.2021 GP/SR. PS. COPY OF THE ORDER FORWARDED TO: (1)THE APPELLANT (2) THE RESPONDENT (3) THE CIT (4) THE CIT (APPEALS) (5) THE DR, I.T.A.T. TRUE COPY BY ORDER