Madanji Meghraj Jewellers Pvt. Ltd., Baroda V. The ACIT, Circle-4, Baroda

MA 17/AHD/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5269 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 10-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BIREN SHAH
• Keywords: Principle of natural justice; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE SHRI S. S. GODARA, JM AND SHRI MANISH BORA D, A.M. M.A. NO.17/AHD/2016 IN ITA NO.2513/AHD/2012 ASST. YEAR: 2004-05 MADANJI MEGHRAJ JEWELLERS PVT. BARODA VS. ACIT, CIRCLE-4, BARODA. APPELLANT RESPONDENT PAN AACCM7940G APPELLANT BY SHRI BIREN SHAH, AR RESPONDENT BY SHRI ALOK KUMAR, SR.DR DATE OF HEARING: 17/02/2017 DATE OF PRONOUNCEMENT: 22/02/2017 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . THIS MISCELLANEOUS APPLICATION IS DIRECTED AT THE INSTANCE OF ASSESSEE STATING THAT - 1. THE PRESENT APPLICATION IS FILED BY THE ABOVE M ENTIONED APPLICANT/ APPELLANT FOR DISMISSING THE ORDER DATED 30-11-2015 PASSED BY HON'BLE TRIBUNAL EX-PARTE. 2. THE HON'BLE ITAT IN ITS ORDER IN PARA NOS. 2 HAS OBSERVED AS UNDER:- '2. ON THE DATE OF HEARING L.E ON 30-11-2015 NONE APPEA RED ON BEHALF OF ASSESSEE NOR WAS ANY ADJOURNMENT APPLICATION FILED ON BEHALF OF THE ASSESSEE, THOUGH THE NOTICE INTIMATING THE DATE OF HEARING WA S SENT THE AFORESAID FACTS INDICATES THAT THE ASSESSEE IS NOT INTERESTED IN PR OSECUTING THE APPEAL AND THEREFORE, THE DECISION OF ITAT DELHI BENCH IN THE CASE OF CIT VS. MULTIPLAN INDIA MA NO.17/AHD/2016 IN ITA NO.2513/AHD/2012 ASST. YEAR 2004-05 2 (PVT.) LTD. 38 ITD 320 (DELHI), WE DISMISS THE APPE AL OF THE ASSESSEE IN LIMINE. THE ASSESSEE SHALL, HOWEVER, BE AT LIBERTY TO APPRO ACH THE TRIBUNAL FOR RECALLING OF THIS ORDER, IF PREVENTED BY SUFFICIENT CAUSE FOR NON-APPEARANCE ON THE DATE OF HEARING.' 3. THE APPLICANT/APPELLANT MOST RESPECTFULLY SUBMIT S THAT THE FACTS OF THE CASE ARE AS UNDER- 3.1 THAT THE ABOVE MENTIONED APPEAL WAS FILED BY TH E ASSESSEE ON 07.11.2012. THEREAFTER, HEARINGS OF THE ABOVE APPEAL WERE FIXED ON TWO RESPECTIVE DATE'S I.E ON 03.01.2013 & 30.11.2015. LAST HEARING OF THE ABO VE MENTIONED APPEAL WAS FIXED ON 30.11.2015, BUT ON THAT DAY THE AUTHORIZED REPRESENTATIVE OF THE APPELLANT COULDN'T ATTEND THE HEARING BECAUSE HE WA S URGENTLY REQUIRED TO TRAVEL TO AUSTRALIA ON ACCOUNT OF MEDICAL URGENCY/SUPPORT IN HIS FAMILY. DUE TO THIS EMERGENCY HE FORGOT TO FILE AN ADJOURNMENT APPLICAT ION BEFORE THE HON'BLE BENCH STATING THE AFORESAID REASON. IN SUPPORT OF THE ABO VE CONTENTION, THE AFFIDAVIT OF MEHUL J RANPURA IS ATTACHED HEREWITH FOR YOUR HONOU RS' KIND PERUSAL ALONG WITH COPY OF HIS PASSPORT. THUS, THIS BEING A REASONABLE CAUSE IN THE INTEREST OF THE NATURAL JUSTICE AND EQUITY, THE ASSESSEE REQUESTS Y OUR HONOURS TO KINDLY GRANT A FRESH OPPORTUNITY TO THE APPELLANT TO REPRESENT HIS CASE ON MERITS, AND THUS THEREBY REQUESTING YOUR HONOURS TO RECALL THE APPEA L BY SETTING ASIDE THE EX- PARTE ORDER. OTHERWISE IT MAY CAUSE GREAT INJUSTICE AND HARDSHIP TO THE APPLICANT WITHOUT ANY CAUSE ATTRIBUTABLE TO IT. NEEDLESS TO S AY FOR THIS ACT OF KINDNESS, THE APPLICANT AS IN DUTY BOUND SHALL FOREVER PRAY AND R EMAIN GRATEFUL. 4. WITHOUT PREJUDICE TO ABOVE, THE APPLICANTS SUBMI TS THAT THE ASSESSEE SHOULD NOT BE MADE TO SUFFER FOR THE LAPSE ON THE PART OF THE AUTHORIZED REPRESENTATIVE. FOR THIS RELIANCE IS PLACED ON THE DECISIONS RENDER ED IN THE CASE OF RAFIQ & ANR V. MUNSHILAL & ANR AIR [1981 SC 1400], MAHAVIR PRASAD JAIN V. CIT [172 ITR 331] [MP], CONCORD OF INDIA INSURANCE CO LTD V. SMT NIRM ALA DEVI [118 ITR 507] [SC]. THUS, THERE WAS A SUFFICIENT CAUSE OF FAILURE TO AT TEND/SEEK ADJOURNMENT ON THE DATE OF HEARING. IT WAS THUS NOT ATTRIBUTABLE TO TH E WILLFUL OR DELIBERATE NEGLECT OR OMISSION ON THE PART OF THE APPLICANT. HENCE WE REQ UEST YOUR GOOD HONOURS TO REVIVE THE APPEAL IN THE LIGHT OF ABOVE FACTS AND C IRCUMSTANCES AS THE ASSESSEE SHOULD NOT BE MADE TO SUFFER ON ACCOUNT OF NON-APPE ARANCE OF A.R. IN ADDITION TO ABOVE IN LIGHT OF PROVISO TO RULE-24 OF INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, THE APPEAL MUST BE RESTORED SINCE THERE WAS A SUFFICIENT CAUSE FOR NON- APPEARANCE. MOREOVER, HON'BLE SUPREME COURT IN THE CASE OF SANGRAM SINGH V. ELECTION TRIBUNAL, AIR 1955 SC 425 HAS OBSERVED THA T THE PROCEDURAL LAW IS BASED ON THE PRINCIPLES OF NATURAL JUSTICE WHICH RE QUIRE THAT NO ONE SHOULD BE CONDEMNED UNHEARD AND THAT A DECISION SHOULD NOT BE TAKEN ' BEHIND THE BACK'. HENCE, IN THE LETTER AND SPIRIT OF LAW THE APPELLAN T/APPLICANT REQUESTS YOUR GOOD HONOR TO KINDLY RESTORE THE APPEAL. MA NO.17/AHD/2016 IN ITA NO.2513/AHD/2012 ASST. YEAR 2004-05 3 5. THE HON'BLE TRIBUNAL BE PLEASED TO ACCEPT THE PR AYER OF THE APPLICANT/APPELLANT AND REHEAR THE MATTER. 2. AFTER HEARING THE LD. REPRESENTATIVES, WE OBSERV E THAT THE AUTHORIZED REPRESENTATIVE OF THE APPELLANT COULDN'T ATTEND THE HEARING BECAUSE HE WAS URGENTLY REQUIRED TO TRAVEL TO AUSTR ALIA ON ACCOUNT OF MEDICAL URGENCY/SUPPORT IN HIS FAMILY. DUE TO THIS EMERGENCY HE FORGOT TO FILE AN ADJOURNMENT APPLICATION BEFORE THE BENCH STATING THE AFORESAID REASON. IN SUPPORT OF THE ABOVE CONTENTION, THE AFF IDAVIT OF MEHUL J RANPURA HAS BEEN PLACED ON RECORD FOR READY REFEREN CE ALONG WITH COPY OF HIS PASSPORT. WE ARE OF THE VIEW THAT THIS IS A REASONABLE CAUSE DUE TO WHICH ASSESSEE COULD NOT REPRESENT ITS CASE ON T HE FIXED DATE AND IN THE INTEREST OF THE NATURAL JUSTICE AND EQUITY ASSE SSEE SHOULD GET A FRESH OPPORTUNITY OF HEARING, THE REGISTRY IS DIRECTED TO FIX THE HEARING OF THE APPEAL ON 18 TH APRIL, 2017. NO NOTICE WILL BE ISSUED TO BOTH THE PARTIES. 3. IN THE RESULT, MISCELLANEOUS APPLICATION IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 FEBRUARY , 2017 SD/- SD/- (S. S. GODARA) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 22/02/2017 MAHATA/- MA NO.17/AHD/2016 IN ITA NO.2513/AHD/2012 ASST. YEAR 2004-05 4 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 17/02/2017 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 21/02/2017 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 22/2/17 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: