Shri Jitendrabhai Revabhai Chaudhari, Ahmedabad V. The Income tax Officer,Ward-7(3), Ahmedabad

MA 166/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7890 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 17-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Assessee Lawyers: M K PATEL
• Keywords: Principle of natural justice
• Section: 144

Judgement Text

M .A NO. 166/AHD/2011 IN ITA NO. 185/A/2011 ASST. YEAR 2004-2005 1 I N THE INCOME TAX APPELLATE TRIBUNALC BENCH,AHMEDA BAD (BEFORE SRI MUKUL KR. SHRAWAT, J.M. AND SRI A MOH AN ALANKAMONY A.M.) MA NO. 1 66/AHD/2011 (ARISING OUT OF I.T.A. NO. 185/AHD/2011) (ASSESSMENT YEAR: 2004-2005) JITENDRA REKHA BHAI CHAUDHARY AHMEDABAD (APPELLANT) VS. THE INCOME TAX OFFICER WARD 7(3), AHMEDABAD (RESPONDENT) PAN : ADMPC2950Q ON BEHALF OF THE ASSESSEE M.K. PATEL, A.R. ON BEHALF OF THE REVENUE. MR. H.K. LAL SR. D.R DATE OF HEARING : 23/03/20 12 DATE OF PRONOUNCEMENT : 25/05/2012 ( )/ ORDER PER: SRI MUKUL KR. SHRAWAT, J.M. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE DATED 17 TH OCTOBER, 2011 ARISING FROM THE ORDER OF THE TRIBUN AL; AS MENTIONED HEREINABOVE IN THE NOMENCLATURE; DATED 09 .09.2011. 2. FROM THE SIDE OF THE APPLICANT LEANED AR, M.K. PATEL APPEARED. HE HAS EXPLAINED THE REASONS OF NON-APPEARANCE AS P ER THE FOLLOWING M .A NO. 166/AHD/2011 IN ITA NO. 185/A/2011 ASST. YEAR 2004-2005 2 PARAGRAPHS REPRODUCED FROM THE MISCELLANEOUS APPLIC ATION UNDER THE CONSIDERATION;- IT IS HUMBLY STATED THAT THE NOTICE OF THE HEARIN G WAS DULY SERVED AT THE ADDRESS OF THE ASSESSEE, AND WAS RECEIVED BY TH E ASSESSEES BROTHERS SON WHO WAS STAYING THERE AT THE RELEVANT TIME TO STUDY FOR HIS EXAMS. HOWEVER, UNFORTUNATELY DURING THE RELEVANT TIME THE ASSESSEE HAS GONE TO AUSTRALIA TO STAY WITH HIS SON. THE ASSESSEE WAS IN AUSTRALIA F ROM 06 AUGUST 2011 UP TO 11 TH OCTOBER, 2011. THE COPY OF THE RELEVANT AIR-TICKE T AND PASSPORT ARE ENCLOSED HEREWITH FOR READY REFERENCE. UNDER THESE CIRCUMSTANCES, THE ASSESSEE COULD NOT HAND OVER THE NOTICE TO THE LOCA L CHARTERED ACCOUNTANT AND NECESSARY ARRANGEMENT COULD NOT BE MADE FOR SEE KING ADJOURNMENT OR PROPER REPRESENTATION BEFORE THE INCOME-TAX APPELLA TE TRIBUNAL AND HENCE THE MATTER WENT BY DEFAULT. IT IS HUMBLY PRAYED THAT IN THE INTEREST OF JUSTIC E THE ABOVE ORDER MAY KINDLY BE RECALLED AND THE ASSESSEE BE GIVEN AN OPP ORTUNITY TO REPRESENT THE MATTER ON MERITS AND THE ASSESSEE ASSURES FULL COOP ERATION AND OBLIGE. SUPPORTING AFFIDAVIT IS ATTACHED HEREWITH. 3. FROM THE SIDE OF THE REVENUE LEARNED SR. DR H.K . LAL APPEARED AND INFORMED THAT THE ASSESSEE IS A HABITUAL DEFAUL TER. AN ASSESSMENT ORDER WAS PASSED UNDER SECTION 144 OF I T ACT DATED 24.08.2006. THEREAFTER A BELATED APPEAL WAS FILED BEFORE LEARNE D CIT(A). THAT APPEAL WAS TIME BARRED BY 18 MONTHS THEREFORE THE S AME WAS DISMISSED BY LEARNED CIT(A). THAT ORDER OF CIT(A) WAS CHALLENGED BEFORE THE TRIBUNAL BUT AGAIN ON THE APPOINTED DAY OF HEARING NO-ONE M .A NO. 166/AHD/2011 IN ITA NO. 185/A/2011 ASST. YEAR 2004-2005 3 HAS APPEARED THEREFORE AFTER CONSIDERING THE DEFECT OF SHORT DEPOSIT OF TRIBUNAL FEES THE APPEAL WAS DISMISSED BY THE RESPE CTED TRIBUNAL. LEARNED DR HAS THEREFORE PLEADED THAT IN THE LIGHT O F THE PAST HISTORY OF THE CONDUCT OF THIS ASSESSEE NO FURTHER OPPORTUN ITY DESERVES TO BE GRANTED. 4. IN REJOINDER LEARNED AR HAS INFORMED THAT AS FAR AS THE QUESTION OF SHORT PAYMENT OF TRIBUNAL FEES IS CONCE RNED IN THE LIGHT OF THE DECISION OF HONBLE KARNATAKA HIGH COURT PRONOU NCED IN THE CASE OF RAJKAMAL POLIMER 291 ITR 314 THE ASSESSEE HAS PAID ONLY RS. 500 WHICH WAS AN ADEQUATE AMOUNT AND ON THAT GROUND THE APPEAL HAS BEEN WRONGLY DISMISSED. 5. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES WE ARE OF CONSIDERED VIEW THAT ALTHOUGH THIS APPLICANT IS NOT VIGILANT IN PERUSING HIS LITIGATION BUT CONSIDERING THE DOCTRIN E OF NATURAL JUSTICE ONE LAST CHANCE CAN BE GRANTED. AS FAR AS THE PRES ENT QUESTION OF SHORT PAYMENT OF TRIBUNAL FEE IS CONCERNED, THAT TO O HAS TO BE CONSIDERED BY THE TRIBUNAL. ON THAT CONTROVERSY, W HETHER THE TRIBUNAL FEES WAS ADEQUATELY DEPOSITED AND NO OPPOR TUNITY OF HEARING WAS GIVEN TO THIS ASSESSEE. THROUGH THIS MI SCELLANEOUS PETITION THE ASSESSEE HAS TRIED TO DEMONSTRATE THAT DURING THE PERIOD WHEN THE APPEAL WAS FIXED FOR HEARING HE WAS UNAB LE TO HAND OVER THE NOTICE TO HIS LOCAL CHARTERED ACCOUNTANT SINCE HE HAD GONE TO AUSTRALIA FROM 06 AUGUST, 2011 TO 11 OCTOBER, 2011. IN SUPPORT THE PHOTOCOPIES OF AIR TICKET AND PASSPORT WERE ALSO PL ACED ON RECORD. BE M .A NO. 166/AHD/2011 IN ITA NO. 185/A/2011 ASST. YEAR 2004-2005 4 THAT AS IT WAS, WE ARE OF THE VIEW THAT ONE MORE LA ST CHANCE IS TO BE GRANTED TO THIS ASSESSEE ESPECIALLY WHEN LEARNED AR M.K PATEL HAS GIVEN AN ASSURANCE IN THE COURT THAT THE MATTER SHA LL BE ATTENDED PROPERLY WITHOUT ANY DEFAULT ON THE PART OF THE ASS ESSEE. LEARNED AR HAS GIVEN AN UNDERTAKING THAT IF A DATE MAY BE GRAN TED THEN HE SHALL PERSONALLY APPEAR AND GET THE MATTER RESOLVED AT AN EARLY DATE WITHOUT FRIVOLOUS ADJOURNMENTS. IN THE LIGHT OF THE UNDERTAKING GIVEN BY LEARNED AR, WE HEREBY RECALL THE ORDER DATED 09. 09.2011 AND DIRECT THE REGISTRY TO FIX THIS CASE FOR HEARING ON 18 TH OF JUNE, 2012. NOTICE IS TO BE ISSUED ACCORDINGLY. 6. IN THE RESULT MISCELLANEOUS PETITION IS HEREBY ALLOWED AS PER THE DIRECTION. SD/- SD/- ( A. MOHAN ALANKAMONY) (MUKUL KR.SHRA WAT) ACCOUNTANT MEMBER JUDICIAL ME MBER A.KUMAR COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDED 3. THE CIT(APPEALS)-II, BARODA 4. THE CIT CONCERNED. 5. THE DR, ITAT, AHEMEDABAD 6. GUARD FILE BY ORDER DEPUTY/ASSTT.REGISTRAR AAA ITAT, AHMEDABAD