Shri Dilipkumar Manilal Patel, Ahmedabad V. The Income Tax Officer, Ward-12(3), Ahmedabad

MA 198/AHD/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6421 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 04-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALBINUS TIRKEY
• Assessee Lawyers: S V AGRAWAL
• Section: 201; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER DILIPKUMAR M PATEL, C/O A.R. S.V. AGRAWAL & CO, CHARTERED ACCOUNTANTS 502, 5 TH FLOOR, MANGAL MURTI COMPLEX, OPP. CITY GOLD CINEMA ASHRAM ROAD, AHMEDABAD PAN: AHLPP0258 P (APPELLANT) VS THE IT O , WARD - 1 2(3) , AHMEDABAD (RESPONDENT) REVENUE BY : S H RI ALBINUS TIRKEY , SR. D . R. ASSESSEE BY: SHRI S.V. AGRAWAL, A.R. DATE OF HEARING : 18 - 01 - 2 019 DATE OF PRONOUNCEMENT : 18 - 02 - 2 019 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THE PRESENT TWO MISCELLANEOUS APPLICATIONS ARE DIRECTED AT THE INSTANCE OF ASSESSEE POINTING APPARENT ERROR IN THE ORDER OF TRIBUNAL DATED 8 TH AUGUST, 2016. 2. THE REGISTRY HAS POINTED OUT THAT THE SE APP LICATIONS HAVE BEEN FILED AFTER THE EXPIRY OF LIMITATION BY 515 DAYS. THE APPEALS OF THE ASSESSEE WERE M.A. NOS. 197 & 198/AHD/ 2 0 18 (IN I T A NO S . 1561 & 1562 / A HD/20 13) A SSESSMENT YEAR 200 6 - 07 TO 2007 - 08 M.A. NOS. 1 97 & 198/AHD/2018 (IN I.T.A NO. 1561 & 1562 /AHD/20 13) A.Y. 2006 - 07 TO 2007 - 08 PAGE NO DILIPKUMAR M. PATEL VS. IT O 2 DISMISSED ON 8 TH AUGUST, 2016 WHEREAS THE MISCELLANEOUS APPLICATIONS ARE FILED ON 4 TH JULY, 2018. IT HAS BEEN BROUGHT TO OUR NOTICE THAT SECTION 254(2) AMENDED W.E.F. 01 - 06 - 2016 PROVI DING A LIMITATION FOR FILING MISCELLANEOUS APP LICATION POINTING ANY APPARENT ERROR WITHIN SIX MONTHS . ACCORDINGLY, L D. DEPARTMENTAL REPRESENTATIVE STATED THAT THE PRESENT APPLICATION S ARE NOT MAINTAINABLE. O N THE OT HER HAND, LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THESE APPLICATIONS ARE MOVED UNDER RULE 24 OF THE ITAT RULE . 3. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AND GONE THROUGH THE RECORD CAREFULLY. IT IS IMPERATIVE UPON US TO TAKE NOTE OF RULE 24 OF ITAT R ULE WHICH READS AS UNDER: - 24. WHERE, ON THE DAY FIXED FOR HEARING OR ON ANY OTHER DATE TO WHICH THE HEARING MAY BE ADJOURNED, THE APPELLANT DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORISED REPRESENTATIVE WHEN THE APPEAL IS CALLED ON FOR HEA RING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE RESPONDENT: PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVIDED ABOVE AND THE APPELLANT APPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HI S NON - APPEARANCE, WHEN THE APPEAL WAS CALLED ON FOR HEARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE EX PARTE ORDER AND RESTORING APPEAL.] A PERUSAL OF THIS RULE WOULD INDICATE THAT IN CASE APPELLANT FAILS TO APPEAR BEFORE THE TRIBUNAL ON THE A PPOINTED DATE WHEN THE APPEAL IS LISTED THEN TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERIT AFTER HEARING THE RESPONDENT. HOWEVER, THE PROVISO APPENDED TO THIS RULE FURTHER CONTEMPLATES THAT IN CASE A N APPELLANT APPEARS BEFORE THE TRIBUNAL AFTERWARDS SATIS FIES THE TRIBUNAL THAT T HERE WAS SUFFICIENT CAUSE FOR HIS NON - APPEARANCE WH EN THE APPEAL WAS CALLED ON FOR HE ARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE EX - PARTE ORDER AND RESTORING THE APPEAL. IN THE APPLICATION , THE ASSESSE E HAS CONTENDED THAT HI S WIFE, JAGRUTIBEN D. PATEL, WAS SUFFERING FROM CANCER AND FIGHTING WITH HER LIFE , THEREFORE, ON THE DATE OF HEARING, HE WAS PRE - OCCUPIED FOR THE TREATMENT OF HIS WIFE AND COULD NOT APPEAR BEFORE THE TRIBUNAL . TO M.A. NOS. 1 97 & 198/AHD/2018 (IN I.T.A NO. 1561 & 1562 /AHD/20 13) A.Y. 2006 - 07 TO 2007 - 08 PAGE NO DILIPKUMAR M. PATEL VS. IT O 3 OUR MIND, IT IS A JUSTIFIABLE REAS ON FOR NOT APPEARING BEFORE THE TRIBUNAL. THE OTHER QUESTION WHICH IS POSED BEFORE US IS T HAT T HIS APPLICATION HAS BEEN FILED ON 4 TH JULY, 2018 WHEREAS THE TRIBUNAL S ORDER WAS PASSED ON 8 TH AUGUST, 2016. ACCORDING TO THE LD. DEPARTMENTAL REPRESENTATIVE SUB - SECTION 2 OF SECTION 254 HAS B EEN AMENDED W.E.F. ON 1 ST JULY, 2016 PROVIDING A LIMITATION FOR FILING MISCELLANEOUS APPLICATION POINTING ERROR WITHIN SIX MONTHS . AS FAR AS THIS ASPECT IS CONCERNED, IT IS PERTINENT TO KNOW THAT WE HAVE PERUSED THE RECO RD. IT REVEALS THAT ORDER OF THE TRIBUNAL WAS ISSUED ON 11 TH NOV, 2016 BUT THERE IS NO EVIDENCE OF ITS SERVICE UPON THE ASSESSEE. NEITHER THE ACKNOWLEDGMENT IS AVAILABLE N OR ANY OTHER MATERIAL WHICH CAN SUGGEST THAT THIS ORDER WAS SERVED UPON THE ASSESSE E. IT IS ALSO PERTINENT TO KNOW THAT ASSESSEE HAS APPLIED FOR INSPECTION OF THE TRIBUNAL RECORD ON 23 RD JAN, 2018 WHICH WAS ALLOWED ON 29 TH JAN , 2018. AFTER INSPECTION, ASSESSEE HAS FILED PRESENT APPEAL PLEADING THEREIN THAT THIS ORDER WAS NEVER COMMUNIC ATED TO THE ASSESSEE. THUS, ACCORDING TO THE ASSESSEE, THE APPLICATIONS HAVE BEEN FILED UNDER RULE 24 OF THE ITAT RULES WITHIN SIX MONTHS F R O M THE DATE OF KNOWLEDGE OF THESE ORDERS. CONSIDERING THE ABOVE SITUATION, WE ARE OF THE VIEW THAT THESE APPLICATI ONS HAVE BEEN FILED WITHIN TIME AFTER KNOWI NG THE ORDER PASSED BY THE ITAT . TAKING THIS GUIDANCE FROM RULE, 24 WE ALLOW THESE APPLICATIONS AND RECALL THE TRIBUNALS ORDER IN BOTH THE APPEALS AND RESTORE THEM TO THEIR ORIGINAL NOS. 4 . IN THE RESULT, BOT H THE MA S OF THE ASSESSEE ARE ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 18 - 02 - 201 9 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER M.A. NOS. 1 97 & 198/AHD/2018 (IN I.T.A NO. 1561 & 1562 /AHD/20 13) A.Y. 2006 - 07 TO 2007 - 08 PAGE NO DILIPKUMAR M. PATEL VS. IT O 4 AHMEDABAD : DATED 18 /02 /2019 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,