Rich Paints Limited, Baroda V. The Income Tax Officer,Ward-4(2), Baroda

MA 175/AHD/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4034 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 1995-1996
• Appeal Filed On: 11-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Assessee Lawyers: VIPUL SHAH
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) M.A. NOS: 175 & 182/AHD/2018 (IN ITA NOS. 186 & 188/AHD/2015) (ASSESSMENT YEARS: 1995-96 & 1997-98) RICH PAINTS LTD. C/O. SMT. BHARTIBEN M. SHAH, 60 SUNDARAM NAGAR, NEAR JAKAT NAKA, VASNA ROAD, VADODARA (GUJ) V/S INCOME TAX OFFICER, WARD 4(2), BARODA (APPELLANT) (RESPONDENT) PAN: AAACR 8988H APPELLANT BY : SHRI VIPUL SHAH, A.R. RESPONDENT BY : SHRI LALIT P. JAIN, SR. D.R. ( )/ ORDER DATE OF HEARING : 04 -01-201 9 DATE OF PRONOUNCEMENT : 08 -03-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. BY VIRTUE OF THIS MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE U/S 254(2) OF THE ACT, THE ASSESSEE INTENDS TO RECALL THE IMPUGNE D EX PARTE ORDER DT. 04-01- 2018 PASSED BY THIS TRIBUNAL. M.A. NOS. 17 5 & 182/AHD/2018 . A.Y. 1995-96 & 1997-98 2 2. THE LD. AR BEFORE US SUBMITTED AS UNDER: 1. THE APPLICANT BEING A TOTALLY DEFUNCT COMPANY NO T DOING ANY BUSINESS SINCE LAST SO MANY YEARS DID NOT RECEIVE THE NOTICE OF HEARING FIXED BY THIS HON' BLE TRIBUNAL SENT AT RESIDENCE ADDRESS OF DIRECTOR MRS. BHARTIBEN M. SHAH WHICH WAS UNFORTUNATELY LOCK ED AT THAT TIME AND THAT'S WHY IT RESULTED INTO NON-ATTENDANCE OR NON-COMPLIANCE. SIR, THE FIR ST & FOREMOST GROUND IS THE FACT THAT I AM THE ONLY LADY IN THE FAMILY NEW AGED ABOUT 77 YEARS, WI DOWED IN THE YEAR 2009 AND SUFFERING FROM PARKINSON DISEASE SINCE LAST 2 YEARS WHICH IS AGGRA VATING DAY BY DAY AND DUE TO OLD-AGE PROBLEMS FREQUENTLY BEING ADMITTED TO HOSPITAL AND THEREFORE COULD NOT RECEIVE THE NOTICE AND APPEAR BEFORE YOUR HONOUR. A CERTIFICATE OF PRACTICING DOCTOR CONF IRMING THE DISEASE AND PRESENT POSITION IS ENCLOSED HERETO MARKED AS ANNEXURE 'A' TO THIS APPLICATION. TH E APPELLANT CAME TO KNOW ABOUT THE DISMISSAL OF THESE APPEALS THROUGH THE ORDER DATED 07.05.2018 PASSED BY LD. ITO, WARD 2(1)(2), BARODA U/S 179 OF IT. ACT, 1961, A COPY OF T HE SAID ORDER IS ENCLOSED HERETO AND MARKED AS ANNEXURE 'B' TO THIS APPLICATION, ON THE BASIS OF WHICH THE APPLICATION IS MADE TO OBTAIN FRESH COPY OF ORDER WHICH WAS RECEIVED ON 06.06.2018. THE SECOND GROUND IS THAT THIS HON'BLE TRIB UNAL WHILE DISMISSING THE APPEAL FOR NON- PROSECUTION, FAILED TO CONSIDER ON MERITS THE CONTE NTIONS ROSE BY THE APPELLANT REGARDING THE VITAL DOCUMENT LYING ON RECORD AND WHICH HAS A DIRECT BEA RING ON THE ISSUE INVOLVED IN THE CASE LOOKING TO THE CERTAIN IMPORTANT FACTS / FINDINGS MENTIONED IN THE SUCCEEDING PARAGRAPHS. THE APPLICANT SUBMITS THAT THE ISSUE INVOL VED IN THE APPEAL WAS REGARDING THE ADDITION IN RESPECT OF THE CREDIT ENTRIES APPEARING IN THE BANK STATEMENT OF THE DENA BANK, BARODA AND THE CONTENTION OF THE ASSESSEE HAS BEEN THAT THE CREDIT ENTRIES BEING FICTITIOUS THERE WAS NO INVOLVEMENT OF SUCH HUGE CASH. THE COPY OF THE MEMORANDUM ISSUED B Y THE PERSONNEL DEPARTMENT OF DENA BANK ON 26/7/2001, WHICH HAD A DIRECT BEARING ON THE QUESTI ON INVOLVED IN THE APPEAL WAS ALREADY LYING ON THE RECORD HAS ALTOGETHER ESCAPED THE ATTENTION OF THE HON'BLE TRIBUNAL. THE APPLICANT HAS PERSONALLY RECEIVED THE COPY OF T HE ORDER DATED 04.01.2018 DISMISSING THE APPEAL FOR WANT OF PROSECUTION ON 06.06.2018, HENCE THIS A PPLICATION FOR RESTORATION OF THE APPEAL BY RECALLING ORDER DATED 04.01.2018 IS FILED. A COPY O F THE ORDER DATED 04.01.2018 PASSED BY HON'BLE TRIBUNAL IS ALSO ENCLOSED HERETO AND MARKED AS ANNEX URE 'C'. M.A. NOS. 17 5 & 182/AHD/2018 . A.Y. 1995-96 & 1997-98 3 THE APPLICANT MOST HUMBLY SUBMITS THAT IN VIEW OF T HE FACTS NARRATED HEREIN ABOVE, IT IS APPARENT THAT THE APPLICANT HAS NOT BEEN NEGLIGENT IN THE MA TTER BUT COULD NOT APPEAR DUE TO NON RECEIPT OF NOTICE OF HEARING. IN THE BACKGROUND OF THESE FACTS THE APPLICANT PRAYS THAT THE DEFAULT OF NON APPEARANCE IS BECAUSE OF THE SUFFICIENT CAUSE AND H ENCE THE APPEAL DESERVES TO BE RESTORED BY EXERCISI NG POWERS UNDER PROVISO TO RULE 24 OF THE ITAT RULES. T HE APPLICANT THEREFORE MOST HUMBLY SUBMITS THAT THE ORDER PASSED BY THIS HON'BLE TRIBUNAL MAY B E RECALLED AND THE APPEAL MAY BE FIXED FOR FRESH HEARING FOR DISPOSAL ON MERITS, OTHERWISE IT WOULD CAUSE GREAT INJUSTICE AND HARDSHIP TO THE APPELLANT, FROM THE ABOVE FACTUAL ASPECTS, IT IS TO SUBMIT THA T WE ARE PREVENTED BY SUFFICIENT CAUSE FOR NON APPEARING ON THE DATE OF HEARING. THEREFORE IT IS P RAYED FOR RESTORATION OF THE ABOVE APPEALS. IT IS, THEREFORE, PRAYED THAT THE ORDER DATED 04/01 /2018, DISMISSING THE APPEAL FOR NON APPEARANCE BE RECALLED AND THE APPEAL BE RESTORED AND HEARD ON MERITS. AN AFFIDAVIT IN SUPPORT OF THIS APPLICATION IS ENCLO SED HERETO. 3. ON THE OTHER HAND THE LD. DR RAISED NO OBJECT ION IF THE MATTER IS RECALLED FOR FRESH ADJUDICATION AS PER THE PROVISION OF LAW. 4. HEARD RIVAL SUBMISSIONS AND PERUSED THE RECOR D. ON PERUSAL OF THE ORDER DT. 04-01-2018, WE FIND THAT IN SPITE OF SERVICE OF NOTICES BY THE REGISTRY NEITHER ANY ONE APPEARED NOR THERE WAS ANY ADJOURNMENT APPL ICATION FILED ON BEHALF OF ASSESSEE FOR THE HEARING ON 04-01-2018. THUS, FOLLO WING THE VARIOUS DECISIONS IN THE CASES OF MULTIPLAN INDIA (P) LTD REPORTED IN 38 ITD 320 (DEL), HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT REPORTED IN 223 ITR 480(MP) THE TRIBUNAL DISMIS SED THE APPEAL OF ASSESSEE BY PASSING EX PARTE ORDER FOR NON PROSECUT ION. WE FIND THAT THERE WAS SUFFICIENT REASON FOR THE ASSESSEE IN NOT APPEARING BEFORE THE TRIBUNAL ON THE SAID DATE OF HEARING [04-01- 2018]. THEREFORE, IN V IEW OF SUBMISSION OF ASSESSEE M.A. NOS. 17 5 & 182/AHD/2018 . A.Y. 1995-96 & 1997-98 4 WE RECALL THE ORDER DATED 04-01-2018 BY ALLOWING TH IS MISC. APPLICATION FILED BY THE ASSESSEE. 5. NEXT DATE OF HEARING IN THIS MATTER IS 12/03/2 019 AND SAME HAS BEEN COMMUNICATED TO BOTH THE PARTIES AND NO SEPARATE NO TICE WILL BE SENT TO ANY OF THE PARTIES. 6. IN THE RESULT, THE MISC. APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 08 - 03 - 2019 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDIC IAL MEMBER AHMEDABAD: DATED 08/03/2019 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD