Saravana Stocks Investments (P) Ltd., CHENNAI V. ACIT Company Circle VI(1), Chennai

MA 174/CHNY/2022

AI Insights

The case involves M/s. Saravana Stocks-Investments (P) Ltd., the appellant, who filed a Miscellaneous Application against an ex-parte order of the ITAT dismissing their appeal due to uncured defects. The appellant argued that their counsel was preoccupied with other professional commitments, which prevented them from appearing at the scheduled hearing. The Tribunal considered the circumstances and the legal precedents cited, particularly focusing on the principles of natural justice and the right to be heard before a decision is made.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 130032 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-02-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-02-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 27-11-2022
• Other Referred Cases: PCIT v. ITAT [2020] 425 ITR 581 (Bom.), Pradeep Kumar Jindal v. PCIT [2021] 432 ITR 48 (Delhi), Babulal Jain v. ITO [2008] 298 ITR 369 (MP)
• Laws Referred To: Income Tax Act, Income Tax Appellate Tribunal Rules, 1963
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation; Condonation of delay
• Section: 263; 143(3); 254(2); 48

Judgement Text

Miscellaneous Application No.174/Chny/2022 (in ITA No.2298/Chny/2018) िनधा रण वष /Assessment Year: 2010-11 M/s.Saravana Stocks- Investments (P) Ltd., New No.11, Old No.5, Bishop Wallers Avenue (West), Mylapore, Chennai-600 004. v. The Asst. Commissioner- of Income Tax, Company Circle-VI(1), Chennai. [PAN: AAICS 7328 C] (अपीलाथ /Appellant) ( यथ /Respondent) अपीलाथ क ओर से/ Appellant by : Mr.M.S.Syali, Sr. Adv. For Mr.Tarandeep Singh, Adv. यथ क ओर से /Respondent by : Mr.D. Hema Bhupal, JCIT सुनवाई क तारीख/Date of Hearing : 17.02.2023 घोषणा क तारीख /Date of Pronouncement : 17.02.2023 आदेश / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: The petitioner has filed present Miscellaneous Application u/r.24 of the Income Tax Appellate Tribunal Rules, 1963, is directed against ex-parte order passed by the Tribunal in ITA No.2298/Chny/2018 dated 26.08.2019 and relevant assessment year 2010-11. 2. The assessee has narrated the facts of its case and mistakes stated to be apparent on record from the order of the Tribunal dated 26.08.2019 आयकर अपीलीय अिधकरण, ‘ए’ यायपीठ, चे ई। IN THE INCOME TAX APPELLATE TRIBUNAL ‘A’ BENCH: CHENNAI ी वी. दुगा राव, माननीय ाियक सद एवं ी जी. मंजूनाथा, माननीय लेखा सद के सम BEFORE SHRI V. DURGA RAO, HON’BLE JUDICIAL MEMBER AND SHRI G. MANJUNATHA, HON’BLE ACCOUNTANT MEMBER MA No.174/Chny/2022 (in ITA No.2298/Chny/2018) :: 2 :: and relevant contents of Miscellaneous Application filed by the petitioner are reproduced as under: Captioned appeal was heard ex-parte by the Hon'ble Bench on 26th August 2019 and vide order dated 26th August 2019 (copy enclosed as Annexure A) the Hon'ble Bench was pleased to dismiss the appeal after observing as under: "2. None represented on behalf of the Assessee and Mr. AR. V. Sreenivasan represented on behalf of the Revenue. 3. At the time of hearing, the assessee has field an adjournment application, which is rejected. The appeal has been filed by the assessee on 06.08.2018. Defect notice dated 25.09.2018 has been issued to the assessee intimating following two defects. (i) Appeal is time barred by 1557 days. Affidavit not filed. (ii) Assessment order u/s 143(3) not filed. The Appeal was posted for hearing on 10.02.2018 and none appeared on behalf of the assessee. The appeal was again posted on 12.03.2019, 29.05.2019 and subsequently adjourned to today on which date also none appeared, but an adjournment letter has been received. The defects in respect of non-filing of the assessment order u/s 143(3) of the Act has been cured. However, the second defect pointed out in respect of non-filing of affidavit for condonation of delay has not been cured. 4. Consequently, the appeal filed by the assessee stands dismissed for defects uncured by applying the principles laid down by the Hon'ble Jurisdictional High court in the case of Prasad Productions P. Ltd, vs. Income Tax Appellate Tribunal [1997] 226 ITR 778 (Mad). 5. In the result, the appeal of the assessee is dismissed in liminie on account of defects uncured. Order pronounced in the open Court after conclusion of hearing on 26th August, 2019 at Chennai." 2. In this regard it is submitted that the appellant is very much interest in perusing the captioned appeal on merits. Impugned order passed u/s 263 has far reaching civil consequences on the assessee. Dates chart of sequence of relevant events in this case till date is enclosed herewith as Annexure B. Further sufficient cause for non-appearance before Hon'ble ITAT on 26th August 2019 is evident from the following facts. (ii) The captioned appeal was prepared by the counsels engaged who would have travelled from Delhi to Chennai. However, on 26th August, 2019 the counsels got preoccupied in other matters which were heard on that day. Although Supreme Court and High Court Matters got adjourned owing to last moment adjournment requests made by tax department, however, a heavy stay granted matter (before Hon'ble Delhi ITAT in case of M/s TSI Yatra Pvt Limited, ITA No. 1068/Del/2019 - "G" bench ITAT) got heard at length on 26th and thereafter on 29th August 2019. Considering this a prayer for adjournment was made by the local Chennai CA vide adjournment application dated 23rd August 2019 before this Hon'ble Court. In this regard copy of office diary is enclosed herewith as Annexure C. (iii) Moreover the appellant had also obtained the necessary affidavit dated 23rd August 2019 in support of its prayer seeking Condonation of Delay. In this regard please find attach copy of petition u/s 253(5) filed in fresh appeal filed on 30th MA No.174/Chny/2022 (in ITA No.2298/Chny/2018) :: 3 :: September 2022 as Annexure D. An application seeking condonation of delay and final copy of necessary affidavit was kept ready to be filed before this Hon'ble Court during the course of hearing on 26th August 2019, however, since an adjournment was being sought {for reasons mentioned in para (ii) above} inadvertently the appellant omitted to annex copy of petition seeking condonation of delay along with adjournment application dated 23rd August 2019. Since during the course of hearing on 26th August 2019 none represented on behalf of appellant the said fact was inadvertently not brought to the knowledge of Hon'ble ITAT. 3. Kind reference is invited to the provisions of Rule 24 of ITAT Rules 1963 which is as under: "24. Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorised representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent. Provided that where an appeal has been disposed of as provided above the appellant the Tribunal for his non-appearance, when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex-parte order and restoring the appeal." From a reading of Rule 24, it is apparent that ITAT is vested with the power to recall an ex-parte order. Requirement of the proviso is that the tribunal must be satisfied that there was a sufficient cause for non-appearance. The sufficient cause for non- appearance before Chennai ITAT on 26th August 2019 is evident from facts stated in para 2 above. It is submitted that when a request is made for adjournment on the ground that the counsel engaged is professionally occupied in another court then that constitutes a sufficient cause for granting a short adjournment [Reference Babulal Jain vs ITO reported in 298 ITR 369(Del); Lal Devi vs Vaneeta Jain reported in (2007) 7 SCC 200; Joseph Michael vs ITAT reported in 199 ITR 466(Ker)}. 4. It is submitted that in the present case ex-parte order of Hon'ble ITAT is dated 26th August 2019, reasons for not filing a petition under Rule 24 of ITAT Rules earlier is apparent from the dated chart enclosed. It is submitted with respect that when an appeal is dismissed in liminie on account of defects uncured then there is no decision on merits. As such principals of res judicata are not applicable {Refer RM Sundaram vs Sri Kayarohanasamy reported in (2022) SCC Online SC 888; CIT vs Goodwill Theatres Private Limited reported in 400 ITR 566(SC)}. Hence this Hon'ble Bench has jurisdiction in interest of substantial justice to take up and decide the fresh appeal in ITA 2803/Chennai/2019 which is also currently pending disposal. This petition under Rule 24 is being moved by way of abundant precaution and as an acceptable alternative plea. Moreover, it is submitted that provisions of section 254(2) of Income Tax Act and Rule 24 of ITAT Rules are divergent jurisdictions and relief under one cannot be granted under guise of another {Refer Prasad Production Pvt Limited 226 ITR 778(Mad). This is an application as per provisions of Rule 24 of IT AT Rules, 1963 for which unlike provisions of section 254(2) no period of limitation is prescribed. Hence this petition is maintainable. 5. For the reasons mentioned above it is prayed that the order passed by Hon'ble IT AT dated 26th August 2019 may kindly be recalled and the appeal be decided on merits. PRAYER A. In the interest of Justice and Fair Play the order passed by Hon'ble IT AT dated 26 th August 2019 may kindly be recalled and the appeal along with application filed u/s.253(5) of the Act be decided on merits. B. This application be put up before Hon'ble Bench and an opportunity of being heard be granted to the applicant. MA No.174/Chny/2022 (in ITA No.2298/Chny/2018) :: 4 :: Prayed accordingly. 3. The Ld.Counsel for the petitioner referring to petition filed u/r.24 of the Income Tax Appellate Tribunal Rules, 1963, submitted that the Tribunal has dismissed the appeal by the assessee in ‘limine’ for not rectifying the defects noticed by the Registry. Further, the Tribunal disposed off the appeal ex-parte, even though, the petitioner has filed petition for seeking adjournment for hearing. The petitioner is very much interested in pursuing appeal on merits. However, the Ld.Counsel for the petitioner could not appear on the date of hearing due to his pre-occupation with other professional work before the Hon’ble Supreme Court which resulted in non-appearance of Ld.Counsel for the petitioner. However, the petitioner has filed a petition and explained the reasons for non-appearance of Ld.Counsel for the petitioner and sought adjournment. In this regard, the Ld.Counsel for the petitioner is filed photo copy of his case diary and order of the Hon’ble Supreme Court in SLP No.996/2019 in support of his arguments and pleaded that ex-parte order passed by the Tribunal may be recalled to advance substantial justice. In this regard, he relied upon certain judicial precedents, including the decision of the Hon’ble Bombay High Court in the case of PCIT v. ITAT reported in [2020] 425 ITR 581 (Bom.). 4. The Ld.DR, on the other hand, submitted that the assessee has failed to make out a prima facie case of mistake in the order of the Tribunal. Further, the petitioner could not adduce proper reasons for non-appearance MA No.174/Chny/2022 (in ITA No.2298/Chny/2018) :: 5 :: as on the date of hearing and also non-rectification of defects noticed by the Registry. Therefore, submitted that petition filed by the petitioner u/r.24 of the Income Tax Appellate Tribunal Rules, 1963, cannot be admitted. 5. We have heard both the sides and considered the contents of MA filed by the petitioner u/r.24 of the Income Tax Appellate Tribunal Rules, 1963. We find that the Tribunal has disposed off appeal filed by the petitioner in limine on account of uncured defects noticed by the Registry. Admittedly, order passed by the Tribunal was ex-parte. The Ld.Counsel for the petitioner could not appear when the appeal was posted for hearing on 26.08.2019. However, a petition has been filed for seeking adjournment of hearing to next date by explaining reasons, as per which, the Ld.Counsel for the petitioner, who has to come from Delhi was pre-occupied with some other professional work before the Hon’ble Supreme Court. The Ld.Counsel for the petitioner further explained that the assessee was pursuing alternate remedy and filed fresh appeal before the Tribunal against the order of the PCIT u/s.263 of the Act, on 30.09.2019 after receipt of order of the Tribunal on 26.08.2019 and was confident that his second appeal is valid appeal and he can pursue its case on merits. However, when the second appeal came up for hearing, the Tribunal noticed that the appeal filed by the petitioner is not maintainable and further, an opportunity has been given to the petitioner to file petition u/r.24 of the Income Tax Appellate Tribunal Rules, 1963, to recall the ex-parte order passed by the MA No.174/Chny/2022 (in ITA No.2298/Chny/2018) :: 6 :: Tribunal. Therefore, the petitioner has filed a present petition u/r.24 of the Income Tax Appellate Tribunal Rules, 1963, to recall the order of the Tribunal and petition filed by the petitioner, is supported by the decision of the Hon’ble Bombay High Court in the case of PCIT v. ITAT (supra). 6. We find that the reasons given by the Ld.Counsel for the petitioner for not appearing for hearing when the appeal was posted for hearing appears to be genuine and bon fide. We further noted that the Ld.Counsel for the petitioner could not appear for hearing due to his pre-occupied professional work in the Hon’ble Supreme Court and the Ld.Counsel for the petitioner has explained the reasons before the Tribunal. Although, the assessee has sought the adjournment by filing a petition with reasons, but the Tribunal rejected the petition filed by the petitioner and dismissed the appeal in ‘limine’ due to uncured defects. It is a well settled principal of law by the decision of the Hon’ble Bombay High Court in the case of PCIT v. ITAT (supra) that the Tribunal is vested with the powers to re-call the ex-parte order, if the assessee explain sufficient cause for non-appearance as on the date of hearing and for recalling such order, no time line is prescribed u/r.24 of the Income Tax Appellate Tribunal Rules, 1963. The Hon’ble High Court further noted that on co-joint reading of provisions of Sec.254(2) of the Act r.w.r.24 of the Income Tax Appellate Tribunal Rules, 1963, it is very clear that both the provisions should be read harmoniously to advance the objective that a decision on merits should be avoided in absence of aggrieved litigants to establish principle of natural justice that MA No.174/Chny/2022 (in ITA No.2298/Chny/2018) :: 7 :: a litigant should be heard before a decision is taken. A similar view has been taken by the Hon’ble Delhi High Court in the case of Pradeep Kumar Jindal v. PCIT reported in [2021] 432 ITR 48 (Delhi) where it has been clearly held that where Tribunal passed an ex-parte order dismissing the appeal filed by the petitioner merely on the ground of non-appearance of assessee and not on merits notwithstanding delay on the part of the petitioner in challenging the said order of the Tribunal, such ex-parte order to be quashed. In so far as reasons given by the Ld.Counsel for the petitioner for not appearing as on the date of hearing to ascertain whether said reason is a sufficient reason for recalling ex-parte order, we find that the Hon’ble Madhya Pradesh High Court in the case of Babulal Jai v. ITO reported in [2008] 298 ITR 369 (MP) had considered an identical issue and held that where Counsel appearing had made a submission that it would not be possible for him to appear, because, he would otherwise be professionally busy in some other court, such court before him adjournment was prayed for was ordinarily required to accommodate Counsel, because, such accommodation was not only to accommodate Counsel, but would also amount to show respect to other court before which such Counsel has to put his appearance. 7. In this case, on perusal of the facts available on record, there is no doubt with regard to the fact that the Ld.Counsel for the petitioner has sought for adjournment of hearing with a petition and explained reasons for non-appearance and such reasons given by the Ld.Counsel for the MA No.174/Chny/2022 (in ITA No.2298/Chny/2018) :: 8 :: petitioner, is genuine and bona fide. Therefore, we are of the considered view that the order of the Tribunal in ITA No.2298/Chny/2018 needs to be recalled and thus, we recalled the order of the Tribunal in ITA No.2298/Chny/2018 dated 26.08.2019 and direct the Registry to post the appeal for hearing on 13.03.2023, for which, issue of separate notices to both the parties is dispensed with. 8. In the result, the Miscellaneous Application filed by the petitioner is allowed. Order pronounced on the 17 th day of February, 2023, in Chennai. Sd/- ( वी. दुगा राव) (V. DURGA RAO) याियक सद य/JUDICIAL MEMBER Sd/- (जी. मंजूनाथा) (G. MANJUNATHA) लेखा सद य/ACCOUNTANT MEMBER चे ई/Chennai, दनांक/Dated: 17 th February, 2023. TLN आदेश क ितिलिप अ ेिषत/Copy to: 1. अपीलाथ /Appellant 4. आयकर आयु /CIT 2. यथ /Respondent 5. िवभागीय ितिनिध/DR 3. आयकर आयु (अपील)/CIT(A) 6. गाड! फाईल/GF