K.Velusamy, Coimbatore V. DCIT, Coimbatore

MA 178/CHNY/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7160 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-10-2011
• Assessment Year: misc
• Appeal Filed On: 12-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHA HJI P JACOB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER, AND SHRI N.S. SAINI, ACCOUNTANT MEMBER M.P. NO. 178/MDS/2011 I.T.[SS].A. NO. 96/MDS/2003 (BLOCK PERIOD : 1989-90 TO 1999-2000 [UPTO 9.9.199 8]) SHRI K. VELUSWAMY S/O KULLAPPA GOUNDAR 4/95-C, PAYAPPANOOR METTUPALAYAM COIMBATORE DT PAN : V-701 (APPELLANT) VS. THE DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE COIMBATORE (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SHRI SHA HJI P. JACOB DATE OF HEARING : 20.10.2011 DATE OF PRONOUNCEMENT : O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER : IN THIS MISCELLANEOUS PETITION FILED BY THE ASSESSE E, IT SEEKS RECALL OF ORDER DATED 06 TH JUNE, 2011 OF THIS TRIBUNAL IN I.T.A. NO. 558/MDS/2011. MP. NO. 178/MDS/11 2 2. THE ASSESSEE HAS FILED AN APPLICATION DATED 9.8. 2011 PRAYING FOR THE RESTORATION OF THE APPEAL AS UNDER: YOUR APPELLANTS APPEAL PETITION WAS POSTED FOR HEA RING ON 26.4.2011. SINCE YOUR APPELLANT WAS HAVING HIS DOME STIC URGENCY, HE HAS TO ATTEND THE SAME AND FOR THAT HE H AS PRAYED AN ADJOURNMENT. WHEREAS IN THE MEANWHILE, Y OUR APPELLANT WAS SICK AND SUFFERED VERY MUCH AND WAS BE DRIDDEN ON 20.4.2011. DUE TO PATHETIC CONDITIONS, HE HAS UN DERGONE TREATMENT FROM 20.4.2011 TO TILL 9.8.2011 WHICH IS DUE TO UNFORESEEN AND CIRCUMSTANCES BEYOND THE CONTROL. FOR HAILING AN UNDERGOING TREATMENT, YOUR APPELLANT HAS ENCLOSED HEREWITH MEDICAL CERTIFICATE. YOUR APPELLANT WAS ABOUT TO ATTEND THE CASE POSTED FO R HEARING AND DUE TO CIRCUMSTANCES BEYOND THE CONTROL I T WAS UNABLE TO HIM WHICH IS ABSOLUTELY DUE TO UNFORESEEN CIRCUMSTANCES. HENCE YOUR APPELLANT PRAY YOUR HONOUR PLEASE BE KIND ENOUGH IN RESTORING THE SAID APPEAL PETITION AND THE APPEA L PETITION ADMITTED FOR HEARING. MP. NO. 178/MDS/11 3 3. THE LD. D.R. DID NOT RAISE ANY SERIOUS OBJECTION TO RESTORING THE APPEAL OF THE ASSESSEE. 4. NONE APPEARED ON BEHALF OF THE ASSESSEE. AFTER HEARING THE SUBMISSIONS OF THE LD. D.R., WE FIND THAT THE TRIB UNAL VIDE ORDER DATED 26.4.2011 IN ITSSA NO. 96/MDS/2003 DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT IN SPITE OF SERVICE OF NOTICE, NONE APPEARED ON BEHALF OF THE ASSESSEE. THE HON'BLE MA DRAS HIGH COURT IN THE CASE OF RAVI PRAKASH KHEMKA VS. ITAT [2007] 288 ITR 362 [MDS] HAS HELD THAT A READING OF RULE 24 OF THE INC OME TAX [APPELLATE TRIBUNAL] RULES, 1963, CLEARLY SHOWS THA T EVEN THOUGH AN EXPARTE ORDER ON MERITS COULD BE PASSED BY THE TRIB UNAL IN THE ABSENCE OF THE PETITIONER, WHEN AN APPLICATION IS F ILED INVOKING PROVISO TO RULE 24 OF THE INCOME TAX [APPELLATE TRI BUNAL] RULES, 1963, STATING OUT SUFFICIENT CAUSE FOR NON APPEARAN CE OF THE PETITIONER OR THEIR AUTHORIZED REPRESENTATIVE, THE TRIBUNAL SHALL, ON A CONSIDERATION OF THE CAUSE SHOWN, SET ASIDE THE E XPARTE ORDER, RESTORE THE APPEAL AND HEAR ON THE MERITS OF THE CA SE. WE FIND THAT THE ASSESSEE, VIDE ITS PRESENT M.P HAS SHOWN REASON ABLE CAUSE FOR MP. NO. 178/MDS/11 4 ITS INABILITY TO BE PRESENT ON THE DATE OF HEARING OF THE CASE BEFORE THE TRIBUNAL. WE, THEREFORE, RECALL THE EX-PARTE O RDER PASSED ON 26.4.2011 AND RESOTRE THE SAME BACK TO ITS ORIGINAL NUMBER. REGISTRY IS DIRECTED TO FIX THE APPEAL IN NORMAL CO URSE. 3. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON 21 ST OCTOBER, 2011. SD/- SD/- (HARI OM MARATHA) (N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 21 ST OCTOBER, 2011. VL COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT(A), CHENNAI (4) CIT, CHENNAI (5) D.R. (6) GUARD FILE