Mr.Nand Lal Sharma, Haripur V. Income Tax Officer, Kullu

MA 17/CHANDI/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6917 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 20-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH SR DR
• Section: 274

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JM M.A. NO. 17/CHD/2018 IN ./ ITA NO. 1098/CHD/2016 / ASSESSMENT YEAR : 2010-11 SHRI NAND LAL SHARMA, S/O SHRI MOTI LAL SHARMA, VILLAGE-MANSARI, P.O. HARIPUR, TEHSIL-MANALI, DISTT. KULLU (HP). VS THE ITO, KULLU, ( H.P.). ./ PAN NO. : AZWPS6712L / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI VIJAY KUMAR # ! ' / REVENUE BY : SHRI MANJIT SINGH, SR.DR $ % ! & / DATE OF HEARING : 18.01.2019 '()* ! & / DATE OF PRONOUNCEMENT : 01.03. 2019 $%/ ORDER BY THE PRESENT MISCELLANEOUS APPLICATION, THE ASSESSEE PRA YS FOR RECALL OF EX-PARTE ORDER DATED 15.09.2017 IN ITA 1098/CH D/2017 WHEREIN THE APPEAL OF THE ASSESSEE WAS DISMISSED IN LIMINE ON THE G ROUNDS OF NON- PROSECUTION. 2. THE LD. AR RELYING UPON THE APPLICATION SUBMITTED THAT ON THE SPECIFIC DATE, THE ASSESSEE FOR LACK OF RECEIPT OF NOTICE DID NOT APPEAR AND HAS APPEARED BEFORE THE ITAT ON AN EARLIER DATE I.E. 28.12 .2016 AND NO DOUBT, ON THE SAID DATE THE APPEAL WAS ADJOURNED ON T HE REQUEST OF THE ASSESSEE. HOWEVER, IT WAS HIS STATEMENT MADE AT BAR TH AT THE DEFECT NOTICE ISSUED BY THE REGISTRY WAS NEVER BROUGHT TO THE NOTICE OF THE ASSESSEE AS THE ASSESSEE HAS NOT RECEIVED COPY OF THE SAME. THE LD. AR GAVE AN ORAL UNDERTAKING THAT HE SHALL CURE THE DEFECTS AND IS SERIOUS IN PURSUING THE APPEAL FILED. ACCORDINGLY, IT WAS HIS PRAYER THAT THE EX-PARTE ORDER DISMISSING THE ASSESSEE'S APPEAL IN LIMINE MAY BE REC ALLED AS THE ASSESSEE NEITHER RECEIVED THE NOTICE OF THE HEARING FIXE D ON 12.07.2017 NOR ANY DEFECT NOTICE STATED TO HAVE BEEN ISSUED BY TH E REGISTRY WAS RECEIVED BY HIM. M.A. 17/CHD/2018 IN ITA1098/CHD/2016 PAGE 2 OF 2 3. CONSIDERING PRAYER OF THE LD. AR, LD. SR.DR IN REPLY STAT ED THAT HE HAS NO OBJECTION TO RECALL OF THE ORDER AND THE PRAYER OF THE ASSESSEE FOR A DECISION ON MERITS. 4. HAVING HEARD THE SUBMISSIONS, PERUSED THE MATERIAL ON RECORD IT IS SEEN THAT IN THE FACTS OF THE PRESENT CASE, THE ASSESSE E WAS REPRESENTED BEFORE THE ITAT ON 28.12.2016 AND THE APPEAL WAS ADJOUR NED ON HIS REQUEST. HOWEVER, IN THE FACE OF THE STATEMENT AT BAR THAT THE FACTUM OF DEFECTS WAS NOT BROUGHT TO THE NOTICE OF THE ASSESSEE AND THE STATEMENT AT BAR THAT NOTICE FOR THE SPECIFIC DATE OF HEARING WAS NOT RECEIVED BY THE ASSESSEE ALONGWITH HIS ORAL UNDERTAKING GIVEN IN THE OPEN COURT THAT THE DEFECTS SHALL BE CURED, ACCEPTING THE EXPLANATION AS BONA FIDE AND TRUE, THE EX-PARTE IMPUGNED ORDER IS RECALLED. SUPPORT IS DRAWN FRO M THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS ANSA L HOUSING CONSTRUCTION LTD. 274 ITR 131 (DEL). AFTER ASCERTAINING THE CONVENIENCE OF THE PARTIES, THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING ON 20.03.2019 FOR WHICH DATE, NO SEPARATE NOTICE WOULD BE ISSU ED AS THE DATE WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01.03. 2019. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER ' ( (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. $ / / CIT 4. $ / ( )/ THE CIT(A) 5. -01 2 , & 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7% / GUARD FILE (+ $ / BY ORDER, 8 # / ASSISTANT REGISTRAR