M/s. Antriksh Communication, Ahmedabad V. The ACIT.,Circle-10, Ahmedabad

MA 164/AHD/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8159 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 26-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PF JAIN
• Section: 254(2); 113; 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) M.A. NO: 164/AHD/2019 (IN ITA NO. 709/AHD/2013) (ASSESSMENT YEAR: 2008-09) M/S. ANTRIKSH COMMUNICATION S/5, AJAY CENTRE, PALLVI TOWER, NAVRANGPURA, AHMEDABAD-380009 V/S ASST. COMMISSIONER OF INCOME TAX, CIRCLE-10, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AALFA 7625A APPELLANT BY : SHRI P. F. JAIN, AR RESPONDENT BY : SHRI VIDHYUT TRIVEDI, SR. D. R. ( )/ ORDER DATE OF HEARING : 20 -12-201 9 DATE OF PRONOUNCEMENT : 10 -01-2020 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. BY VIRTUE OF THIS MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE U/S 254(2) OF THE ACT, THE ASSESSEE INTENDS TO RECALL THE IMPUGNE D EX PARTE ORDER DT. 31-10- 2018 PASSED BY THIS TRIBUNAL. M.A. NO 164/ AHD/2019 . A.Y. 2008-09 2 2. THE LD. AR BEFORE US SUBMITTED AS UNDER: 1. THIS MISC APPLICATION IS MADE IN RESPECT OF ORDER O F HONBLE I.T.A.T. BENCH 'SMC' PRONOUNCED ON 31/10/2018 RECEIVED ON 02/11/2018 DISMISSING THE APPEAL OF THE APPELLANT APPLYING DECISION OF ITAT DELHI BENCH IN THE CASE OF CIT V/S. MULTIPLAN INDIA (PVT) LTD. 38 ITD 320 (DEL). WITH THE OBSERVATION THAT THE ASSES SEE SHALL HOWEVER BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALLING OF THIS ORDER , IF PREVENTED BY SUFFICIENT CAUSE FOR NON APPEARANCE ON THE DATE OF HEARING. IT IS RESPECTFULLY POINTED OUT THAT ADJOURNMENT APP LICATION WAS FILED ON 08/08/2018 REQUESTING ADJOURNMENT ON THE DATE OF HEARING 13/08/2018 AND O N THAT DATE THE AUTHORIZED REPRESENTATIVE APPEARED AS MENTIONED IN THE ORDER. ACCORDING TO HIM WITHOUT RAISING ANY QUERY FOR ADJOURNMENT APPLICATION WHICH WAS ON ACCOUNT OF PRE OCCUPATION WITH FILING OF NON TAX AUDIT RETURNS FOR WHICH DATE WAS EXTENDED FROM JULY 2018 TO AUGUST 2018 , TH E BENCH APPLIED 38 ITD. IN PARA 2 THERE IS MENTION OF ADJOURNMENT FOR NINE TIMES AND IT HAS BEEN ALSO BEEN OBSERVED THAT ASSESSEE IS NOT INTERESTED IN PURSUING ITS APPEAL INSTITUTED IN THE YEAR 2013. IN THIS CONNECTION THE KIND ATTENTION O F THE HON'BLE BENCH IS DRAWN TO THE FOLLOWING FACTS ON RECORD. 1) ORIGINALLY THE APPEAL OF THE ASSESSEE WAS DISMIS SED BY ORDER DATED 22/11/2013 AGAINST WHICH M.A. WAS FILED WHICH WAS ALLOWED ON 17/01/2017 AND T HE ORIGINAL ORDER WAS RECALLED. IN PARA 5 OF M.A. ORDER THE HON'BLE ITAT OBSERVED AS UNDER : ' T HERE IS NO DISPUTE THAT THE ASSESSEE/APPLICANT HAS THROUGHOUT CLAIMED THE IMPUG NED EXPENSES PAID IN THE NATURE OF OUTSTANDING ENTERTAINMENT TAX IN THE NAME OF M/S. SPACE CHANNEL PVT. LTD. TO BE COVERED UNDER SECTION 37 OF THE ACT ON THE GROUND THAT IT CARRIED THE VERY BUSIN ESS FROM EARLIER ENTITIES PREMISES. THE ASSESSING OFFICER'S REMAND REPORT ITSELF TREATING THE SAME TO BE INVOLVING ELEMENT OF COMPULSIVE BUSINESS EXPEDIENCY HAS APPARENTLY MISSED CIT(A) AS WELL AS THIS TRIBUNAL'S CONSIDERATION IN THE RESPECTIVE ORDERS. WE THUS HOLD TRIBUNAL'S ORDER DATED 22.11.2 013 SUFFERS FROM AN APPARENT ERROR ON THE FACT OF IT IN NOT TAKING INTO CONSIDERATION THE ABOVE RE MAND REPORT.' 2) IN THE SUBSEQUENT HEARING PAPER BOOK NO.2 CONTAI NING 113 PAGES IN ADDITION TO FIRST PAPER BOOK ,WAS FILED IN THE COURT WITH COPY TO D.R. ON 1 1/04/2017 AND IT WAS ADJOURNED TO 14/11/2017. BY APPLICATION DATED 02/02/2018 THE ASSESSEE MOVED APPLICATION FOR TRANSFER OF APPEAL TO SMC BENCH FROM BENCH 'B' . FURTHER THE KIND ATTENTION OF THE HON'BLE BENCH IS D RAWN TO THE FOLLOWING DECISIONS DECIDED ON RULE 24 OF IT AT RULES 63 : 1) SANKET ESTATE & FINANCE (P) LTD. (2013) 32 TAX MAN.COM.342(GUJARAT). IN THIS CASE IT HAS BEEN HELD THAT TRIBUNAL CANNOT DISMISS AN APPEA L FOR WANT OF PROSECUTION WITHOUT SAME BEING M.A. NO 164/ AHD/2019 . A.Y. 2008-09 3 DECIDED ON MERIT FOLLOWING DECISION OF SUPREME COUR T IN THE CASE OF S. CHENNIAPPA MUDALIAR (1969) 74 ITR 41 (SC). 2) N. S. MOHAN (2018) 94 TAXMANN.COM 92(MADRAS), THE HIGH COURT HELD THAT APPEAL HAS TO BE DISPOSED OF ON MERITS IRRESPECTIVE OF WHETHER APPELLANT APPEARS OR NOT IN VIEW OF RULES 24 AND 25. 3) SIMILAR VIEW HAS BEEN TAKEN BY, THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF MAYUR SHEET GRAH (P) LTD. REPORTED IN 38 TAXMANN.COM 229(ALLAHABAD) 4) THE DELHI HIGH COURT IN THE CASE OF OM PRAKASH SA NGWAN REPORTED IN 94 TAXMANN.COM 394 (DELHI). 5) MAHAVIRPRASAD JAIN 172 ITR 331 (M.P.) APPEALS (A AC) DISMISSAL IN DEFAULT COUNSEL FAILED TO APPEAR WHEN CASE WAS POSTED FOR HEARING- APPEAL CANNOT BE DISMISSED APPLICATION CANNOT BE MADE TO SUFFER FOR THE NEGLIGENCE OF HIS COUNSEL. RAFIQ VS. MUNSHILAL AIR 1981 SC 1400 FOLLOWED. HERE THE COUNSEL HAS APPEARED BEFORE THE HONBLE ITAT. IN VIEW OF THE ABOVE FACTS AND LEGAL DECISIONS, THE APPELLANT RESPECTFULLY PRAYS FOR RECALLING OF THE EX- PARTED ORDER PASSED ON 31/10/2018 BY THE HONBLE ITA T. 3. ON THE OTHER HAND THE LD. DR RAISED NO OBJECTI ON IF THE MATTER IS RECALLED FOR FRESH ADJUDICATION AS PER THE PROVISION OF LAW. 4. HEARD RIVAL SUBMISSIONS AND PERUSED THE RECOR D. ON PERUSAL OF THE ORDER DT. 31-10-2018, WE FIND THAT IN SPITE OF SERVICE OF NOTICES BY THE REGISTRY NEITHER ANY ONE APPEARED NOR THERE WAS ANY ADJOURNMENT APPL ICATION FILED ON BEHALF OF ASSESSEE FOR THE HEARING ON 31-10-2018. THUS, FOLLO WING THE VARIOUS DECISIONS IN THE CASES OF MULTIPLAN INDIA (P) LTD REPORTED IN 38 ITD 320 (DEL), HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT REPORTED IN 223 ITR 480(MP) THE TRIBUNAL DISMIS SED THE APPEAL OF ASSESSEE BY PASSING EX PARTE ORDER FOR NON PROSECUT ION. WE FIND THAT THERE WAS SUFFICIENT REASON FOR THE ASSESSEE IN NOT APPEARING BEFORE THE TRIBUNAL ON THE M.A. NO 164/ AHD/2019 . A.Y. 2008-09 4 SAID DATE OF HEARING [31-10- 2018]. THEREFORE, IN V IEW OF SUBMISSION OF ASSESSEE WE RECALL THE ORDER DATED 31-10-2018 BY ALLOWING TH IS MISC. APPLICATION FILED BY THE ASSESSEE. 5. NEXT DATE OF HEARING IN THIS MATTER IS 11/03/2 020 AND SAME HAS BEEN COMMUNICATED TO BOTH THE PARTIES AND NO SEPARATE NO TICE WILL BE SENT TO ANY OF THE PARTIES. 6. IN THE RESULT, THE MISC. APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 10 - 01- 2 020 SD/- SD/- (PRADIP KUMAR KEDIA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 10/01/2020 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD