Shri Khemabhai Hirabhai Patel, Sabarkantha V. The Income Tax Officer, S.K.Ward-2, Himatnagar

MA 189/AHD/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2137 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 09-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Assessee Lawyers: PADAM CHAND JAIN
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER) M.A. NO: 189/AHD/2019 (IN ITA NO. 2700/AHD/2014) (ASSESSMENT YEAR: 2010-11) KHEMABHAI H. PATEL PROP. OF PATHIK PETROLEUM SERVICES, AMBAJI HIGHWAY ROAD, IDAR, S.K.-383001 V/S INCOME TAX OFFICER, S.K. WARD-2, HIMATNAGAR (APPELLANT) (RESPONDENT) PAN: ABAPP8198B APPELLANT BY : SHRI PADAM CHAND JAIN, AR RESPONDENT BY : SHRI L. P. JAIN, SR. D.R. ( )/ ORDER DATE OF HEARING : 15 -11-201 9 DATE OF PRONOUNCEMENT : 19 -11-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. BY VIRTUE OF THIS MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE U/S 254(2) OF THE ACT, THE ASSESSEE INTENDS TO RECALL THE IMPUGNE D EX PARTE ORDER DT. 06-02- 2019 PASSED BY THIS TRIBUNAL. M.A. NO 189/ AHD/2019 . A.Y. 2010-11 2 2. THE LD. AR BEFORE US SUBMITTED AS UNDER: TO THE HONOURABLE MEMBERS, SMC BENCH, INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD. DEAR SIR, SUB : RESTORATION OF APPEAL DISMISSED FOR DEFAULT O F APPEARANCE OF THE APPELLANT. ( APPEAL NO. ITA/2700 AHMEDABAD / 2014. WE HAVE RECEIVED ON 30/04/2019 THE COPY OF THE ORDE R PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, AHMDABAD 'SMC'BENCH , DATED 06/02/2019, WHICH STATES THAT THE APPEAL FILED BY US BEFORE THE TRIBUNAL, ON 8/10/2014, BEING APPEAL NO.ITA 2700 AHMEDABAD /2014 IN THE CASE OF K HEMABHAI H. PATEL FOR THE ASS. YR. 2010-2011, HAS BEEN DISMISSED/ DECIDED EX PARTE ON THE GROUND THAT WE HAVE DEFAULTED IN APPEARING BEFORE THE TRIBUNAL ON 05/02/2019 , WHICH WAS THE DATE FIXED FOR THE HEARING OF THE APPEAL. TO THIS C ONTEXT WE ARE TO REQUEST YOU THAT DUE TO AN ACCIDENT FALLOWED BY THE DEATH OF ON E OF OUR NEAREST WE COULD NOT APPEAR OF THE DATE OF HEARING. HOWEVER, VERY NEXT DAY WE HAVE TRIED, BUT WERE INFORMED THAT THE APPEAL HAS BEEN DISMISSED FOR THE DEFAULT OF NON-APPEARANCE. IT WOULD BE VERY KIND OF YOU SIR, IF YOU WILL PLEAS E ALLOW A CHANCE TO APPEAR BEFORE YOU TO THIS CONTEXT, SINCE THE NON-APPEARANC E WAS BECAUSE OF THE REASONS, BEYOND CONTROL. KINDLY SEE THAT THIS WAS THE FIRST ERROR ON OUR SIDE . KINDLY EXCUSE OUR UNABILITY TO THIS CONTEXT. IN THE ABOVESTATED CIRCUMSTANCES, WE PRAY THAT AFOR ESAID ORDER DATED 06/02/2019 DISMISSING THE APPEAL/DECIDING THE APPEA L EX PARTE FOR DEFAULT OF OUR APPEARANCE ON SPECIFIED DATE, MAY BE REVOKED AND TH E APPEAL RESTORED TO FILE FOR HEARING AND DISPOSAL ACCORDINGLY. M.A. NO 189/ AHD/2019 . A.Y. 2010-11 3 3. ON THE OTHER HAND THE LD. DR RAISED NO OBJECTI ON 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. 06-02-2019, 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 06-02-2019. 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 [06-02- 2019]. THEREFORE, IN V IEW OF SUBMISSION OF ASSESSEE WE RECALL THE ORDER DATED 06-02-2019 BY ALLOWING TH IS MISC. APPLICATION FILED BY THE ASSESSEE. 5. NEXT DATE OF HEARING IN THIS MATTER IS 22/01/2 020 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 19- 11- 20 19 SD/- SD/- (AMARJIT SINGH) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 19/11/2019 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT.