Moly Metal Pvt. Ltd ( Formely Know as Electro Ferro Alloys Pvt. Ltd.,), Ahmedabad V. The Income Tax Officer, Ward-2(1)(1), Ahmedabad

MA 208/AHD/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5554 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 27-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Assessee Lawyers: S N DIVATIA
• Section: 14A; 115JB; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT M EMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER M.A. NO: 208/AHD/2018 (IN ITA NO. 1851/AHD/2016) (ASSESSMENT YEAR: 2012-13) MOLY METAL PVT. LTD. (FORMERLY KNOWN AS ELECTRO FERRO ALLOYS PVT. LTD.) 208, ADITYA BUILDING, NR. KHADAYATA COLONY, MITHKHALI SIX ROADS, AHMDABAD- 380006 VS ITO, WARD- 2(1)(1), (APPELLANT) (RESPONDENT) PAN: AAA CE6 380 L APPELLANT BY : SHRI S. N. DIVATIA, AR RESPONDENT BY : SHRI LALIT P. JAIN, SR. D.R. ( )/ ORDER DATE OF HEARING : 03-05-2019 DATE OF PRONOUNCEMENT : 22-05-2019 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. 28.06.2018 PASSED BY THIS TRIBUNAL. 2. THE LD. AR BEFORE US SUBMITTED AS UNDER: 1. THE APPLICANT ABOVE NAMED SUBMITS THIS MISC. AP PLICATION/S. 254(2) OF THE IT ACT, 1961 (FOR SHORT THE ACT) FOR RESTORATION OF THE ORDER OF THE INCOME TAX M.A. NO. 208/AHD/2018 A.Y. 2012-13 2 APPELLATE TRIBUNAL, AHMEDABAD BENCH-SMC, AHMEDABAD, WHEREBY THE APPEAL OF THE APPLICANT HAS BEEN DISMISSED FOR DEFAULT. 2. THE APPLICANT SUBMITS THAT BEING AGGRIEVED AND D ISSATISFIED WITH THE ORDER PASSED U/S. 250 OF THE ACT ON 16.05.2016 BY CIT(A)- 2, AHMEDABAD, HE HAD PREFERRED AN APPEAL BEFORE THE APPELLATE TRIBUNAL W HEREIN THE APPLICANT HAD CHALLENGED THE DISALLOWANCE/ADDITION U/S. 14A OF RS . 16,49,500/- UPHELD BY THE CIT(A) ON THE GROUND THAT ADMINISTRATIVE AND OTHER EXPENSES REQUIRE TO BE INCURRED FOR EARNING EXEMPT DIVIDEND INCOME. ALSO THE APPELLANT HAD CHALLENGED THE ACTION OF CIT(A) CONFIRMING THE ADJUSTMENT IN R ESPECT OF DISALLOWANCE U/S. 14A OF THE ACT FOR THE PURPOSE OF BOOK PROFIT AS UN DER 115JB OF THE ACT. 3. THE AFORESAID APPEAL HAS BEEN DISMISSED ON THE G ROUND THAT NONE APPEARED ON THE DATED OF HEARING I.E. 27.06.2018 ON BEHALF OF A SSESSEE NOR AN ADJOURNMENT APPLICATION WAS FILED ON BEHALF OF ASSESSEE THOUGH THE NOTICE FIXING HEARING WAS SERVED ON ASSESSEE. 4. THE APPLICANT SUBMITS WITH GREATEST RESPECT THAT APPLICANT HAS NOT RECEIVED ANY NOTICE FIXING THE DATE OF HEARING ON 27.06.2018 AS MENTIONED IN THE IMPUGNED ORDER. THE APPELLANT HAS NO SUCH INTENTION FOR NON -APPEARANCE. IN FACT, THERE ARE FAIR CHANCES FOR THE MATTER TO BE DECIDED IN FAVOUR OF APPLICANT; THEREFORE, THE APPLICANT HAS TRUE INTEREST IN PROSECUTING THE CASE . THE APPLICANT UNDERSTANDS THAT WHEN THE MATTER WAS CALLED OUT ON THAT DATE, S HRI S.N. DIVATIA ADVOCATE WHO HAD APPEARED ON EARLIER DATES OF HEARING OF THIS AP PEAL HAD INFORMED THE HONBLE BENCH OF THIS FACT. 5. UNDER THE ABOVE FACTS AND CIRCUMSTANCES, THE APP LICANT SUBMITS THAT THE ORDER PASSED BY THE HONBLE TRIBUNAL MAY BE RECALLED AND THE APPEAL MAY BE FIXED FOR FRESH HEARING FOR DISPOSAL ON MERITS AFTER CONSIDER ING THE AFORESAID CONTENTIONS, OTHERWISE, IT WOULD CAUSE GREAT INJUSTICE AND HARDS HIP TO THE APPLICANT WITHOUT ANY CAUSE ATTRIBUTABLE TO IT. 6. THE APPLICANT STATES THAT THE ORDER OF THE TRIBU NAL DATED 28.06.2018 WAS RECEIVED BY THE APPLICANT ON 19.07.2018 SO THAT THE PRESENT APPLICATION IS WITHIN 6 MONTHS OF THE DATE OF RECEIPT OF THE ORDER. 7. NEEDLESS TO SAY FOR THIS ACT OF KINDNESS, THE AP PLICANT AS IN DULY BOUND SHALL FOREVER PRAY AND REMAIN GRATEFUL. 3. ON THE OTHER HAND THE LD. DR RAISED NO OBJECTION IF THE MATTER IS RECALLED FOR FRESH ADJUDICATION AS PER THE PROVISION OF LAW. 4. HEARD RIVAL SUBMISSIONS AND PERUSED THE RECORD. ON PERUSAL OF THE ORDER DT. 28.06.2018, WE FIND THAT IN SPITE OF SERVICE OF NOT ICES BY THE REGISTRY NEITHER ANY ONE M.A. NO. 208/AHD/2018 A.Y. 2012-13 3 APPEARED NOR THERE WAS ANY ADJOURNMENT APPLICATION FILED ON BEHALF OF ASSESSEE FOR THE HEARING ON 27.06.2018. THUS, FOLLOWING 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 DISMISSED THE APPEAL OF ASSESSEE BY PASSIN G EX PARTE ORDER FOR NON PROSECUTION. WE FIND THAT THERE WAS SUFFICIENT REAS ON FOR THE ASSESSEE IN NOT APPEARING BEFORE THE TRIBUNAL ON THE SAID DATE OF HEARING [27 .06.2018]. 5. THEREFORE, IN VIEW OF SUBMISSION OF ASSESSEE WE RECALL THE ORDER DATED 28.06.2018 BY ALLOWING THIS MISC. APPLICATION FILED BY THE ASSESSEE. 6. NEXT DATE OF HEARING IN THIS MATTER IS 18.07.201 9 AND NO NOTICE WILL BE SENT TO THE PARTIES. 7. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 22-05-20 19 SD/- SD/- (PRADIP KUMAR KEDIA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 22/05/2019 TANMAY TRUE COPY COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT. REGISTRAR IT AT, AHMEDABAD