Sri A.Devidoss, Kumbakonam V. ITO, Kumbakonam

MA 182/CHNY/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7149 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 14-10-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 12-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S SRIDHAR
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI [BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT AND SHRI HARI OM MARATHA, JUDICIAL MEMBER] M.P.NO.182/MDS/2011 [IN I.T.A NO. 720/MDS/2011] ASSESSMENT YEAR : 2006-07 SHRI A.DEVIDOSS 4, VIJENDRASWAMY MUTT STREET KUMBAKONAM VS THE INCOME TAX OFFICER KUMBAKONAM [PAN AADPD7018E] (PETITIONER) (RESPONDENT) PETITIONER BY : SHRI S.SRIDHAR, ADVOCATE RESPONDENT BY : SHRI SHAJI P. JACOB, ADDL. CIT DATE OF HEARING : 14.10.2011 DATE OF PRONOUNCEMENT : 14.10.2011 O R D E R PER HARI OM MARATHA, JUDICIAL MEMBER: THIS MISCELLANEOUS PETITION HAS BEEN FILED BY THE ASSESSEE SEEKING RECALL OF THE ORDER OF THE TRIBUNAL DATED 21.7.2011 PASSED EX-PARTE QUA THE ASSESSEE-RESPONDENT IN I.T.A.NO.72 0/MDS/2011, PERTAINING TO ASSESSMENT YEAR 2006-07. 2. IN THE PETITION, IT HAS BEEN PRAYED AS UNDER: MP 182/11 :- 2 -: IT IS SUBMITTED THAT THE EXPARTE ORDER PASSED IS UNREASONABLE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN THIS REGARD, REFERENCE IS INVITED T O THE PROVISIONS IN RULE 25 OF THE APPELLATE TRIBUNAL'S R ULES, 1963 INASMUCH AS THE POWER TO RECALL THE EXPARTE OR DER IS VESTED WITH THE HON'BLE BENCH. AS PER THE SAID PROVISIONS, THE SAID POWER COULD BE EXERCISED IN FA VOUR OF THE PETITIONER IN THE EVENT OF REASONABLE CAUSE SHO WN FOR NON APPEARANCE. ON THE FACTS OF THE CASE, THE COUNS EL ON RECORD HAD COMMITTED A MISTAKE IN NOTING DOWN TH E DATE OF HEARING AND IN FACT THE COUNSEL ON RECORD O N THE SAID DATE OF HEARING HAD APPEARED IN NUMBER OF CASE S IN DIFFERENT BENCHES. IN FACT, THE CHARTERED ACCOUNTAN T OF THE PETITIONER WROTE TO THE COUNSEL ON RECORD WITH THE APPEAL PAPERS ON 11.7.2011 ALONG WITH OTHER MATTERS WITH A REQUEST TO APPEAR BEFORE THE BENCH ON BEHALF OF T HE PETITIONER ON 21.7.2011. THE FACT OF THE APPEAL IN THE PETITIONER'S CASE EVEN THOUGH NOTED BY THE COUNSEL ON RECORD, THERE WAS MISTAKE IN RECORDING THE DATE OF HEARING WHICH CAUSED THE REASON FOR THE PASSING OF THE EXPA RTE ORDER. THEREFORE, THE MISTAKE OF THE COUNSEL SHOULD BE TAKEN A REASONABLE CAUSE FOR THE NON APPEARANCE OF THE PETITIONER AND ACCORDINGLY, IT IS PRAYED THAT THE E XPARTE ORDER DATED 21.7.2011 MAY BE SET ASIDE AND RECALLED FOR ADJUDICATION ON MERITS IN THE INTEREST OF JUSTICE. IN ANY EVENT, HAVING NOT CHALLENGED THE VIOLATION O F RULE 46A OF THE INCOME TAX RULES, 1962, THE DEPARTM ENT HAD ONLY QUESTIONED THE CORRECTNESS OF THE DECISION OF THE CIT(APPEALS) ON MERITS. HENCE THERE WAS NO VIOLATIO N OF THE SAID RULE 46A OF THE INCOME TAX RULES, 1962 AND CHANGE IN STAND OF THE PETITIONER WOULD NOT ATTRACT THE SAID RULE. THEREFORE, IN THE ABSENCE OF FRESH EVIDENCE AND FUR THER IN THE ABSENCE OF THE GROUND CHALLENGING THE VIOLATION OF RULE 46A OF THE INCOME TAX RULES, 1962, THE ACTION OF THE BENCH IN APPLYING THE SAID RULE ERRONEOUSLY HAS ATTRACTED THE PROVISIONS IN SECTION 254(2) OF THE A CT. MP 182/11 :- 3 -: ON THE CUMULATIVE CONSIDERATION OF THE FACTS OF THE CASE, THE EXPARTE ORDER DATED 21.7.2011 MAY BE RECALLED I N THE INTEREST OF JUSTICE. CONSEQUENTLY, IT IS PRAYED FU RTHER THAT THE DECISION MAY BE RENDERED ON THE MERITS OF THE GROUNDS OF APPEAL RAISED BY THE DEPARTMENT. 3. AFTER HEARING BOTH SIDES, IT WAS FOUND THAT THE ORDER RENDERED EX-PARTE NEEDS TO BE RECALLED SO THAT IT CAN BE HEA RD AGAIN BY HEARING THE VERSION OF THE ASSESSEE. THE QUESTION REGARDIN G VIOLATION OF RULE 46A IS APPARENTLY FOUND TO BE NOT CORRECT AFTER GOI NG THROUGH THE MISCELLANEOUS PETITION. BUT OUR OBSERVATION WILL N OT AFFECT THE MERITS OF THE CASE AT THE TIME OF HEARING. ACCORDINGLY, W E RECALL THE ORDER IN QUESTION AND DIRECT THE REGISTRY TO POST THE APPEAL FOR HEARING ON 23.11.2011. AS THE DATE WAS PRONOUNCED IN THE OPEN COURT, THERE IS NO NEED TO ISSUE NOTICE OF HEARING SEPARATELY. 4. IN THE RESULT, THE MISCELLANEOUS PETITION STAND S ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.1 0.2011. SD/- SD/- (DR. O.K. NARAYANAN) VICE-PRESIDENT (HARI OM MARATHA) JUDICIAL MEMBER DATED: 14 TH OCTOBER, 2011 RD : COPY TO: PETITIONER/RESPONDENT/CIT(A)/CIT/DR