Shri Ishwarbhai Ambalal Prajapati, Ahmedabad V. The Income Tax Officer, Ward-6(2), Ahmedabad

MA 165/AHD/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6441 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 26-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NK GOEL
• Assessee Lawyers: PF JAIN
• Keywords: Reasonable cause

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER MISCELLANEOUS APPLICATION NO. 165/AHD/2019 (IN I.T(SS).A. NO. 211/AHD/2015) ( ASSESSMENT YEAR : 2004-05) ISHWARBHAI AMBALAL PRAJAPATI 43, VAIBHAV BUNGLOW VIBHAG-3, NEAR GULAB TOWER, SOLA ROAD, AHMEDABAD - 380013 / VS. I.T.O. WARD 6 (2), AHMEDABAD / / PAN/GIR NO. : ALWPP0878Q ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI P. F. JAIN, A.R. / RESPONDENT BY : SHRI N. K. GOEL, SR.D.R. DATE OF HEARING 18/10/2019 !'# / DATE OF PRONOUNCEMENT 21/10/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED MISCELLANEOUS APPLICATION HAS BEEN FI LED AT THE INSTANCE OF ASSESSEE SEEKING RECALL OF EX PARTE ORDER DATED 23.10.2018 PASSED BY THE TRIBUNAL UNDER S.254(1) OF THE ACT WH EREBY THE APPEAL OF THE ASSESSEE DISMISSED IN LIMINE FOR WANT OF PROSECUTION OF ITS APPEAL FILED BY ASSESSEE. 2. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEAR NED AR FOR THE ASSESSEE VIDE ITS MISCELLANEOUS APPLICATION CONTEND ED AS UNDER: M.A. NO. 165/AHD/19 [ISHWARBHAI A. PRAJAPATI VS. ITO] A.Y. 2004-05 - 2 - 1.) THE ADJOURNMENT WAS SOUGHT ON REASONABLE CAUS E BY THE A.R. BECAUSE HE WAS AWAY AT MUMBAI IN CONNECTION WITH ENGAGEMENT CEREMONY OF THE FAMILY MEMBER. 2.) ON THE DATE OF HEARING ON 26/07/2018 BEFORE H ON'BLE BENCH - C, COPY OF LOOSE PAPER WAS FURNISHED TO THE BENCH AND THE M ATTER WAS ADJOURNED TO 22/10/2018. 3.) BY APPLICATION DATED 26/07/2018 SUBMITTED TO T HE REGISTRY, THE ASSESSEE REQUESTED FOR TRANSFER OF THIS APPEAL TO SMC BENCH FROM C BENCH WHICH WAS LISTED FOR HEARING ON 22/10/2018 BEFORE B ENCH C AS STATED ABOVE. 4.) BY LETTER DATED 18/11/2017 SUBMITTED TO THE R EGISTRY ON 20/11/2017 AS WELL AS TO THE D.R. ITAT BENCH C, THE ASSESSEE HAS FILED ADDITIONAL GROUND IN RESPECT OF PENALTY RELYING UPON DECISION OF SUPREME COURT IN THE CASE OF SSA'S EMERALD MEADOWS - 242 TAXMAN - 180. 5.) ON 20/11/2017, PAPER BOOK WHICH WAS CONTAININ G 21 PAGES WAS ALSO FURNISHED WITH COPY TO D.R. 6.) THE MATTER WAS LISTED FOR HEARING BEFORE BENCH C ON 08/05/2018 WHEN ANOTHER PAPER BOOK CONTAINING COPIES OF DECISIONS R UNNING INTO 40 PAGES WAS SUBMITTED TO THE HON'BLE BENCH AS WELL AS TO THE D.R. AND THE MATTER WAS FULLY HEARD. 7.) EVEN THOUGH THE MATTER WAS FULLY HEARD, IT HA S BEEN RELEASED AND AGAIN FIXED FOR RE-HEARING THE REASONS OF WHICH ARE NOT KNOWN TO THE ASSESSEE. 8.) IN PARA 3 OF THE ORDER THERE IS MENTION OF OR DER OF WIP HIGH COURT REPORTED IN 223 ITR 480. WITH DUE RESPECT THIS ORDE R IS NOT APPLICABLE TO THE FACTS OF THE ASSESSEE BECAUSE IN THAT CASE, THE REFERENCE WAS DISMISSED FOR DEFAULT FOR NOT TAKING NECESSARY STEP S WHICH IS NOT THE CASE HERE. BESIDES ABOVE FACTS THE KIND ATTENTION OF THE HON'B LE BENCH IS DRAWN TO THE FOLLOWING DECISIONS ON RULE 24 OF IT A T RULES 63 : 1) SANKET ESTATE & FINANCE (P) LTD. (2013) 32 TAXMAN.COM.342(GUJARAT). IN THIS CASE IT HAS BEEN H ELD THAT TRIBUNAL CANNOT DISMISS AN APPEAL FOR WANT OF PROSECUTION WI THOUT SAME BEING 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 IRRESPE CTIVE OF WHETHER APPELLANT APPEARS OR NOT IN VIEW OF RULES 24 AND 25 . 3) SIMILAR VIEW HAS BEEN TAKEN BY, A.) THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF MAYUR SHEET GRAH (P) LTD. REPORTED IN 38 TAXMANN.COM 229(ALLAHA BAD) B.) THE DELHI HIGH COURT IN THE CASE OF OM PRAKASH SANGWAN . REPORTED IN 94 TAXMANN.COM 394 (DELHI). 4) MAHAVIRPRASAD JAIN 172 ITR - 331 (M.P.) APPEALS (AAC) - DISMISSAL IN DEFAULT - COUNSEL FAILED TO APPEAR WHE N CASE WAS POSTED M.A. NO. 165/AHD/19 [ISHWARBHAI A. PRAJAPATI VS. ITO] A.Y. 2004-05 - 3 - FOR HEARING -APPEAL CANNOT BE DISMISSED - APPLICANT CANNOT BE MADE TO SUFFER FOR THE NEGLIGENCE OF HIS COUNSEL. -RAFIQ VS. MUNSHILAL AIR 1981 SC 1400 FOLLOWED. HERE THE COUNSEL HAS MOVED ADJOURNMENT AP PLICATION BEFORE THE HON'BLE ITAT. IN VIEW OF ABOVE FACTS AND LEGAL DECISIONS, THE AP PELLANT RESPECTFULLY PRAYS FOR RECALLING OF THE EX-PARTE ORDER PASSED ON 23/10/2018 BY THE HONBLE I.T.A.T. 3. AFTER CONSIDERING THE CIRCUMSTANCES EXISTING IN THE CASE AND THE SUBMISSIONS OF THE ASSESSEE, WE ARE SATISFIED THAT THE REASONABLE CAUSE FOR EXISTED FOR FAILURE ON THE PART OF THE ASSESSEE TO APPEAR BEFORE THE ITAT ON THE DATE OF HEARING. ACCORDINGLY, WE RECALL THE ORD ER OF THE ITAT AHMEDABAD BENCH 'C' PASSED IN IT(SS)A NO. 211/AHD/2 015 DATED 23/10/2018 (SUPRA) AND DIRECT THE REGISTRY TO FIX T HE APPEAL FOR FRESH HEARING ON 02/03/2020 IN CONSULTATION WITH BOTH THE SIDES PRESENT. THEREFORE, FORMAL NOTICE OF HEARING IS DISPENSED WI TH THE CONSENT OF BOTH PARTIES. 4. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS ALLOWED. (MAHAVIR PRASAD) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 21/10/2019 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- & / REVENUE 2 / ASSESSEE ( ) *+ , / CONCERNED CIT 4 ,- / CIT (A) / 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7 289 : / GUARD FILE. BY ORDER / 4 / 5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 21/10/2019