Gayatri Associates, Secunderabad, Hyderabad V. ITO, Ward-10(2), Hyderabad, Hyderabad

MA 2/HYD/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5691 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 10-01-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A BENCH: HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER M.A. NO.02/HYD/2017 (ARISING OUT OF ITA. NO.261/HYD/201 6 ) ASSESSMENT YEAR: 2005 - 2006 GAYATRI ASSOCIATES, SECUNDERABAD. PAN: AAFFG 6635 E VS. INCOME TAX OFFICER, WARD - 10(2), HYDERABAD. (APPELLANT) (RESPONDENT) FOR ASSESSEE: SHRI SAMUEL NAGADESI FOR REVENUE : SMT. SUMAN MALIK, DR DATE OF HEARING : 12.01.2018 DATE OF PRONOUNCEMENT : 12.01.2018 ORDER PER D. MANMOHAN , VP. BY THIS APPLICATION ASSESSEE SEEKS RECALL OF THE ORDER DATED 22.09.2016 IN EXERCISE OF THE POWERS VESTED UNDER RULE 24 OF THE APPELLATE TRIBUNAL RULES. 2. AT THE OUTSET IT MAY BE NOTED THAT THE REGISTRY NOTICED SEVERAL DEFECTS UPON SCRUTINISING APPEAL PAPERS FILED BY THE ASSESSEE. ACCORDINGLY A DEFECT NOTICE WAS ISSUED. THOUGH THE APPEAL WAS POSTED FOR HEARING FROM TIME TO TIME, NONE OF THE DEFECTS, AS POI NTED OUT , WERE RECTIFIED BY THE ASSESSEE AND IN FACT NONE APPEARED FOR THE ASSESSEE BEFORE THE TRIBUNAL . T HEREFORE, IN EXERCISE OF THE POWERS VESTED UNDER RULE 9(3) OF THE APPELLATE TRIBUNAL RULES, THE TRIBUNAL DISMISSED THE APPEAL AS UNADMITTED. 3. LD COUNSEL FOR THE ASSESSEE SUBMITS THAT SINCE THE APPEAL IS DISMISSED, IT MAY NOT BE PROPER FOR HIM TO RECTIFY THE DEFECTS AT THIS STAGE AND THEREFORE, THE ASSESSEE HAS CHOSEN NOT TO FILE ANY PAPERS AS 2 OF NOW. HOWEVER, HE WISES TO FILE THE SAME IF THE OR DER IS RECALLED. HE ALSO SUBMITS THAT UNDER RULE 4A OF THE APPELLATE TRIBUNAL RULES, ANY DEFECTIVE APPEAL , IF NOT RECTIFIED BY THE PARTY CONCERNED, SHOULD HAVE BEEN RETURNED TO THE ASSESSEE BUT IN THE INSTANT CASE IT WAS DISMISSED OUTRIGHT AND THUS THE AS SESSEE COULD NOT RECTIFY THE DEFECTS. 4. WE HAVE ALSO HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND CAREFULLY PERUSED THE RECORD. THE FACT REMAINS THAT THE DEFECTS WERE NOT CURED BY THE ASSESSEE THOUGH IT WAS SPECIFICALLY MENTIONED IN THE APPEAL MEM O THAT IN THE ABSENCE OF CURING THE DEFECTS WITHIN A PRESCRIBED PERIOD APPEAL SHALL BE DISMISSED. THEREFORE, THE TRIBUNAL HAD NO OTHER ALTERNATIVE EXCEPT TO INVOKE THE PROVISIONS OF RULE 9(3) OF THE APPELLATE TRIBUNAL RULES AND REJE CT THE APPEAL PAPERS OUT RIGHT BY TREATING THE APPEAL AS UNADMITTED. THERE IS NO T MUCH OF DIFFERENCE BETWEEN RULE 4A AND RULE 9 INASMUCH AS IN BOTH THE SITUATIONS THE TRIBUNAL HAS BEEN GIVEN THE POWER TO REJECT THE APPEAL PAPERS IF THE DEFECTS ARE NOT CURED. SINCE THE APPEAL IS NOT DISPOSED OF ON MERITS, THE ASSESSEE, IF SO ADVISED, CAN ALWAYS PREFER A FRESH APPEAL WITHOUT ANY DEFECTS AND SUBJECT TO FURNISHING REASONS FOR THE DELAY IN FILING THE APPEAL IT CAN ALWAYS BE RECONSIDERED. WE ARE NOT EXPRESSING ANY VIEW AS TO WHETHER A NY APPEAL CAN BE FILED OR NOT. HOWEVER, THE FACT REMAINS THAT THE ORDER PASSED BY THE TRIBUNAL DOES NOT CONTAIN ANY MISTAKE APPARENT ON RECORD SINCE THE BENCH INVOKED RULE 9 OF THE APPELLATE TRIBUNAL RULES AS THE ASSESSEE HAD NOT RECTIFIED THE MISTAKES. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. PRONOUNCED ACCORDINGLY IN THE OPEN COURT ON 12 TH JANUARY, 2018 . SD/ - SD/ - (S. RIFAUR RAHMAN) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT HYDERABAD, DATED: 1 2 TH JANUARY, 2018. 3 OKK, SR.PS COPY TO 1. GAYATRI ASSOCIATES, SECUNDERABAD. C/O. MR. SAMUEL NAGADESI, CHARTERED ACCO8UNTANT, 408, SRI RAMAKARISHNA TOWERS, BESIDE IMAGE HOSPITALS, NAGARJUNA NAGAR, AMEERPET, HYDERABAD - 073. 2. INCOME TAX OFFICER, WARD 10 (2), ROOM NO.514, A - BLOCK, IT TOWERS, A.C. GUARDS, HYDERABAD 500 028. 3. CIT (A) - 8 , HYDERABAD. 4. PR. CIT - 6 , HYDERABAD. 5. DR, ITAT, HYDERABAD. 6. GUARD FILE