VILLAGE ANTIQUE & ETHINIC, Jaipur V. ITO, Jaipur

MA 180/JPR/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5442 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 30-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Question of law

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER M.A. NO. 180/JP/2016 (ARISING OUT OF ITA NO. 566/JP/2016) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 M/S VILLAGE ANTIQUE & ETHINIC, B-141, VIDHYUT NAGAR, QUEENS ROAD, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 3(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AACFV 4665 L VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI AMIT KOTHARI, (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT). LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 03/03/2017 MN?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT: 06/03/2017 VKNS'K @ ORDER PER: BHAGCHAND, A.M. THE ASSESSEE HAS FILED THE PRESENT MISC. APPLICATIO N ON 21/12/2016 AGAINST THE ORDER OF THE ITAT, JAIPUR BENCH, JAIPUR DATED 27/10/2016 PASSED IN ITA NO. 566/JP/2016 FOR A.Y. 2008-09. 2. IN THIS CASE, THE ASSESSEE FILED APPEAL VIDE ITA NO. 566/JP/2016 FOR A.Y. 2008-09 AGAINST THE ORDER OF LEARNED CIT(A), AL IGARH (CAMP OFFICE AT M.A. NO.180/JP/2016 M/S VILLAGE ANTIQUE & ETHINIC VS ITO 2 JAIPUR) DATED 10/03/2016. THIS BENCH OF THE ITAT, J AIPUR HAS DECIDED APPEAL IN ABSENCE OF THE ASSESSEE BY APPLYING DECIS ION OF DELHI BENCH OF ITAT IN THE CASE OF CIT VS MULTIPLAN INDIA (P) LTD. ( 1991) 38 ITD 320 AND DISMISSED THE ASSESSEES APPEAL. 3. THE ASSESSEE FILED THIS M.A. AND SUBMITTED AS UND ER:- 1. THE APPEAL IN THE CASE OF ASSESSEE WAS DECIDED IN ITA NO. ITA NO.566/JP/2016 VIDE ORDER DATED 27.10.2016. THE HON' BLE TRIBUNAL HOWEVER DECIDED THE SAID APPEAL ON THE GROUN D THAT NONE WAS PRESENT FOR ASSESSEE ON THE DATE OF HEARING OF APPEAL AND BY APPLICATION OF JUDGMENT OF DELHI BENC H OF ITAT IN THE CASE CIT V. MULTIPLAN INDIA PVT. LTD. REPORTE D IN 38 ITD 320 AND CERTAIN OTHER CASES, THE APPEAL WAS DISMISSE D FOR NON-PROSECUTION. 2. IT IS RESPECTFULLY SUBMITTED FOR 27.10.2016 REQU EST FOR ADJOURNMENT WAS SENT BY FAX AND HOPING THAT THE CASE WOULD BE ADJOURNED WAS PREVENTED BY SUFFICIENT AND REASONA BLE CAUSE FROM NOT APPEARING BEFORE THE HON'BLE TRIBUNAL ON THE APPOINTED DATED. 3. IN THESE CIRCUMSTANCES, IT IS REQUESTED THAT THE SAID APPEAL SUBMITTED BY THE APPELLANT MAY KINDLY BE RECALLED A ND BE DECIDED ON MERITS OF THE CASE. 4. IT WOULD ALSO BE WORTHWHILE TO MENTION THAT IN THE CASE OF CIT V. MULTIPLAN LTD. REPORTED IN 38 ITD 320, THE DELHI BENCH HAVE CONSIDERED TWO DECISIONS NAMELY SHRI BHAGWAN RADHAKIS HAN V. CIT REPORTED IN 22 ITR 104 (ALL) AND MANGATRAM KUT HIALA V. M.A. NO.180/JP/2016 M/S VILLAGE ANTIQUE & ETHINIC VS ITO 3 CIT REPORTED IN 38 ITR 1 (PUN). IT IS RESPECTFULLY SU BMITTED THAT THE DECISION IN THE CASE OF SHRI BHAGWAN RADHAK ISHAN REPORTED IN 22 ITR 104 HAS BEEN OVERRULED BY THE HON 'BLE SUPREME COURT IN THE CASE OF CIT V. S. CHENNAIAPPA MUDALIAR REPORTED IN 74 ITR 41 AND DECISION IN THE CASE OF MA NGATRAM KUTHIALA REPORTED IN 38 ITR 1 HAS BEEN CONSIDERED AS NOT RELEVANT TO THE APPEAL BEFORE INCOME TAX APPELLATE TR IBUNAL. IN THE SAID JUDGMENT OF S. CHENNIAPPA MUDALIAR AT P AGE 47, THEIR LORDSHIP HAVE HELD THAT THE DECISION OF MANGA RTAM KUTHIALA RELATES TO THE ARTICLE 226 AND 227 OF THE CONSTITUTION AND IT DOES NOT APPEARS TO HAVE VALIDITY TO RULE 24 OF THE INCOME TAX TRIBUNAL. 5. IT IS RESPECTFULLY SUBMITTED THAT IN VIEW OF* THE AFORESAID DECISION OF HON'BLE SUPREME COURT THE RELIANCE PLAC ED ON THE DECISION RELIED UPON WHILE DISMISSING THE MISC. APPL ICATION WAS NOT JUSTIFIED. 6. YOUR KIND ATTENTION IS ALSO INVITED TOWARDS THE DECISION OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF TRIBHUWAN KUMAR AND OTHERS REPORTED IN (2007) 294 ITR 401 (RAJ) IN WHICH IN AN IDENTICAL QUESTION OF LAW WAS CONSIDERED AND THE H ON'BLE COURT OBSERVED AS UNDER : ' WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE INCOME TAX TRIBUNAL WAS JUSTIFIED IN DISMISSING THE APPEAL PREFERRED BY THE PRESENT APPELLANT AS NOT MAINTAINABLE IN VIEW OF RU LE 19 AND 20 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, AN D THE DECISION OF THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH I N THE CASE OF CIT V. MULTIPLAN INDIA P. LTD. (1991) 38 ITD 320 ?' M.A. NO.180/JP/2016 M/S VILLAGE ANTIQUE & ETHINIC VS ITO 4 ON THE AFORESAID QUESTION THE HON'BLE HIGH COURT H ELD AS UNDER : 'HAVING CONSIDERED THE AFORESAID THREE PROVISIONS, WE ARE UNABLE TO COMPREHEND THE VIEW OF THE TRIBUNAL THAT THE ASSESS EE'S APPEAL WAS NOT MAINTAINABLE IN VIEW OF RULES 10 AND 20 OF THE RULES. SURELY THE APPEAL PREFERRED BY THE ASSESSEE WAS COMPETENT UNDER SECTION 253 OF THE INCOME TAX ACT. HOW, IN THE CIRCUMSTANCE S THE TRIBUNAL COULD HOLD THAT THE ASSESSEE'S APPEAL FORM THE ORDE R OF THE COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT MAINTA INABLE WHEN THE APPEAL LAY FROM THE SAID ORDER. THE TRIBUNAL MI SREAD AND MISAPPLIED RULES 10 AND 20 OF THE RULES OF 1963, IN HOLDING THAT THE ASSESSEE'S APPEAL WAS NOT MAINTAINABLE. IF FOR ANY REASON, THE ASSESSEE WAS NOT BEING REPRESENTED ON THE DATE OF H EARING, THE TRIBUNAL COULD HAVE PROCEEDED FOR HEARING OF THE AP PEAL EX-PARTE PROVIDED IN RULE 24 BUT THAT WAS NOT DONE. THE APPE AL HAS BEEN HEARD ON THE MERITS AND THE TRIBUNAL ERRONEOUSLY HE LD THAT THE ASSESSEE'S APPEAL IS NOT MAINTAINABLE IN LAW. WE ACCORDINGLY SET ASIDE THE ORDER DATED OCTOBER, 9 , 2002 IN SO FAR AS THE TRIBUNAL DISMISSED THE APPEAL, BEING ITSA NO . 112/JP/2001 AS NOT MAINTAINABLE. APPEAL NO. 112/JP/2011 IS REST ORED TO THE FILE OF THE INCOME TAX APPELLATE TRIBUNAL ON APRIL, 20, 2007. NO COSTS.' 7. IT IS THEREFORE VERY HUMBLY PRAYED THAT ORDER PA SSED IN ITA NO. 566/JP/2016 VIDE ORDER DATED 27.10.2016 MAY KIN DLY BE RECALLED. 4. THE APPLICANT SUBMITTED THAT AN APPLICATION FOR ADJOURNMENT ON 27/10/2016 WAS SENT BY FAX, BUT IT COULD NOT BE REAC HED OR PROCESSED AND HENCE INFORMATION COULD NOT MADE. THE NON APPEARANCE OF THE APPELLANT WAS NEITHER WILLFUL NOR INTENTIONAL. IN SUPPORT OF T HIS, AN AFFIDAVIT HAS ALSO BEEN FILED BY THE ASSESSEE FIRM REPRESENTATIVE SHRI MAHAVEER KUMAR JAIN. M.A. NO.180/JP/2016 M/S VILLAGE ANTIQUE & ETHINIC VS ITO 5 THEREFORE, HE PRAYED TO RECALL THE HONBLE ITAT ORDER DATED 27/10/2016. THE D.R. HAS NOT RAISED ANY OBJECTION IF THE HONBLE BENCH RECALL THE EXPARTE ORDER DATED 27/10/2016. 5. IN VIEW OF THE SUBMISSION OF THE ASSESSEE THAT HE HAD SENT ADJOURNMENT APPLICATION BUT IT COULD NOT BE REACHED OR PROCESSED. THEREFORE, I AM OF THE CONSIDERED VIEW THAT THE ASSES SEE HAS A PLAUSIBLE REASON FOR NOT APPEARING BEFORE THIS BENCH ON THE D ATE FIXED OF THE HEARING, THEREFORE, FOR THE INTEREST OF JUSTICE, I RECALL ORDER DATED 27/10/2016 PASSED BY THIS BENCH IN ITA NO. 566/JP/2 016 FOR A.Y. 2008-09. ACCORDINGLY THE PRESENT M.A. FILED BY THE ASSESSEE IS ALLOWED. THE REGISTRY OF THE OFFICE IS DIRECTED TO FIX THE CASE AS PER RE GULAR HEARING. 6. IN THE RESULT, THIS M.A. APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/03/2017. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 06 TH MARCH, 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- M/S VILLAGE ANTIQUE & ETHINIC, JAIPUR . 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 3(1), JAIPUR. M.A. NO.180/JP/2016 M/S VILLAGE ANTIQUE & ETHINIC VS ITO 6 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDR @ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (M.A. 180/JP/2016) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR