V.Meenakshinathan, Tirunelveli V. ITO, Tirunelveli

MA 167/CHNY/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4451 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 01-07-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 21-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: R MEENAKSHISUNDARAM
• Keywords: Opportunity of being heard; Bonafide belief; Bonafide mistake

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , D B ENCH, CHENNAI . . . , . , & BEFORE SHRI N.R.S.GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER MISCELLANEOUS PETITION NO. 167/MDS/2015 ( ./ IN I.T.A.NO.328/MDS/2015 ( / ASSESSMENT YEAR : 2011-12 ) MR. V.MEENAKSHINATHAN, 4, NORTH HIGH GROUND ROAD, PALAYAMKOTTAI, TIRUNELVELI-627 002. VS THE INCOME TAX OFFICER, WARD-5, TIRUNELVELI . PAN: AKXPM7367F (PETITIONER) ( /RESPONDENT) APPLICANT BY : MR. R,MEENAKSHI SUNDARAM /RESPONDENT BY : MR. A.V.SREEKANTH, JCIT /DATE OF HEARING : 1 ST JULY, 2016 /DATE OF PRONOUNCEMENT : 1 ST JULY, 2016 / O R D E R PER A. MOHAN ALANKAMONY, AM: THE MISCELLANEOUS PETITION IS FILED BY THE ASSESSE E PRAYING FOR RECALLING THE ORDER OF THE TRIBUNAL PA SSED IN ITA NO.328/MDS/2015 DATED 03.07.2015. 2. BEFORE US, THE LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED THAT THE TRIBUNAL HAD PASSED EX-PARTE ORD ER SINCE HE DID NOT APPEAR BEFORE THE BENCH ON THE DATE OF H EARING. HE FURTHER SUBMITTED AN AFFIDAVIT BEFORE US STATIN G THAT HE WAS UNDER THE BONAFIDE BELIEF THAT IN DUE COURSE HE WILL RECEIVE THE APPEAL PAPERS FROM THE DEPARTMENT WITH RESPECT TO THE DEFECT NOTICE ISSUED BY THE REGISTRY OF THE TRIBUNAL. THEREFORE, HE WAS UNDER THE BONAFIDE BELIEF THAT T HE APPEAL 2 MP NO.167/MDS/2015 WILL NOT BE HEARD TILL THE DEFECT IS CURED AND INTI MATED TO THE ASSESSEE. HENCE, HE FAILED TO APPEAR ON THE GIVEN D ATE OF HEARING. IT WAS THEREFORE PLEADED THAT DUE TO HIS M ISTAKE WHICH WAS NOT WANTON, THE ASSESSEE SHOULD NOT SUFFE R. HE FURTHER SUBMITTED BEFORE US THAT THE CONSULTANCY AG REEMENT DATED 15 TH JULY, 2010 ENTERED BETWEEN THE ASSESSEE AND THE HOSPITAL AUTHORITIES WAS NOT CONSIDERED IN THE DECI SION OF THE TRIBUNAL. HE THEREFORE PLEADED THAT THE ORDER OF TH E TRIBUNAL MAY BE RECALLED THEREBY PROVIDING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENT LY OPPOSED TO THE SUBMISSIONS OF THE LEARNED AUTHORIZE D REPRESENTATIVE AND REQUESTED THAT THE ORDER PASSED BY THE TRIBUNAL ON MERITS MAY BE CONFIRMED. 4. AFTER HEARING BOTH SIDES, WE ARE OF THE CONSIDER ED VIEW THAT DUE TO THE UNINTENTIONAL MISTAKE COMMITTED BY THE LEARNED AUTHORIZED REPRESENTATIVE, THE ASSESSEE SHO ULD NOT SUFFER. RULE 24 OF THE APPELLATE TRIBUNAL RULES, 19 63 PROVIDES THAT WHERE AN APPEAL HAS BEEN DISPOSED OFF EX-PARTE ON MERITS AND IF THE TRIBUNAL IS SATISFIED THAT THERE WAS SUFFICIENT 3 MP NO.167/MDS/2015 CAUSE FOR NON-APPEARANCE OF THE ASSESSEE OR HIS REPRESENTATIVE, THE TRIBUNAL SHALL SET ASIDE THE EX -PARTE ORDER AND RESTORE THE APPEAL FOR FRESH HEARING. CONSIDER ING THE PRAYER OF THE LEARNED AUTHORIZED REPRESENTATIVE, WE ARE OF THE CONSIDERED VIEW THAT THE LEARNED AUTHORIZED REPRESENTATIVE OUT OF INADVERTENT MISTAKE FAILED TO APPEAR BEFORE THE BENCH ON THE GIVEN DATE OF HEARING AND T HEREFORE COULD NOT EFFECTIVELY REPRESENT THE CASE OF THE ASS ESSEE BEFORE THE BENCH. THEREFORE, IN THE INTEREST OF JUS TICE, WE HEREBY RECALL THE ORDER OF THE TRIBUNAL DATED 03.07 .2015 FOR FRESH HEARING DRAWING STRENGTH FROM THE RULE 24 OF APPELLATE TRIBUNAL RULES, 1963. WE ALSO HEREBY DIRECT THE REG ISTRY TO POST THE APPEAL FOR HEARING IN DUE COURSE AND INTIM ATE BOTH THE PARTIES. 5. IN THE RESULT, THE MISCELLANEOUS PETITION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 1 ST JULY, 2016 SD/- SD/- ( . . . ) ( . ) (N.R.S.GANESAN) ( A.MOHAN A LANKAMONY ) # % / JUDICIAL MEMBER % / ACCOUNTANT MEMBER # /CHENNAI, ( /DATED THE 1 ST JULY, 2016 4 MP NO.167/MDS/2015 SOMU *+ ,+ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. - () /CIT(A) 4. - /CIT 5. + 1 /DR 6. /GF .