K.Parthasarathy, Kumbakonam V. ITO, Kumbakonam

MA 21/CHNY/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2946 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 17-04-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 06-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Keywords: Reasonable cause

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI ... , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER M.P. NO.21/MDS/2015 (IN ITA NO.1068/MDS/2011) & '& / ASSESSMENT YEAR : 2005-06 SHRI K. PARTHASARATHY, 18A, NAGESWARAN NORTH STREET, KUMBAKONAM. PAN : AAFPP 2117 E V. THE INCOME TAX OFFICER, WARD I(1), 31, KRISHNASAMY ROAD, GANDHI NAGAR, KUMBAKONAM. ( PETITIONER) ( RESPONDENT) PETITIONER BY : SHRI RAGHAV MENON, ADVOCATE R ESPONDENT BY : SHRI A.V. SREEKANTH, JCIT * + ,$ / DATE OF HEARING : 17.04.2015 -!' + ,$ / DATE OF PRONOUNCEMENT : 17.04.2015 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THE ASSESSEE FILED THE PRESENT MISCELLANEOUS PETI TION TO RECALL THE ORDER OF THIS TRIBUNAL DATED 05.06.2012. 2. SHRI RAGHAV MENON, THE LD.COUNSEL FOR THE ASSESS EE, SUBMITTED THAT THE APPEAL OF THE ASSESSEE, IN FACT, POSTED FOR 2 M.P. NO.21/MDS/15 HEARING ON 05.06.2012. HOWEVER, THE APPEAL OF THE PARTNERSHIP FIRM WAS POSTED FOR HEARING ON 06.06.2012. THE ASSESSEE WAS UNDER THE IMPRESSION THAT BOTH THE APPEALS WERE POSTED FO R HEARING BEFORE THE TRIBUNAL ON 06.06.2012. HOWEVER, THIS APPEAL O F THE ASSESSEE WAS DISMISSED ON 05.06.2012 ITSELF BECAUSE OF HIS N ON-APPEARANCE WHEN THE APPEAL WAS TAKEN UP FOR HEARING. THE ASSE SSEE COULD NOT APPEAR BECAUSE OF THE MISUNDERSTANDING REGARDING TH E DATE OF POSTING. 3. ON THE CONTRARY, SHRI A.V. SREEKANTH, THE LD. DE PARTMENTAL REPRESENTATIVE, SUBMITTED THAT THERE WAS NO SUFFICI ENT CAUSE ON THE PART OF THE ASSESSEE FOR NOT APPEARING BEFORE THIS TRIBUNAL WHEN THE APPEAL WAS TAKEN UP FOR HEARING. ACCORDING TO THE LD. D.R., UNLESS THE ORDER IS MANIFESTLY IN ERROR, THE ORDER CANNOT BE RECALLED. THE LD. D.R. PLACED RELIANCE ON THE JUDGMENT OF HON'BLE DELHI HIGH COURT IN LACHMAN DASS BHATIA HINGWALA (P.) LTD. V. ACIT (2011) 196 TAXMAN 563. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE ASSES SEE FILED THE PETITION FOR RECALL OF THE ORDER UNDER PROVISIONS O F RULE 24 OF INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. THE CONTENTI ON OF THE ASSESSEE BEFORE THIS TRIBUNAL IS THAT THE PARTNERS HIP FIRMS APPEAL 3 M.P. NO.21/MDS/15 AS WELL AS THE INDIVIDUAL APPEAL OF THE ASSESSEE WE RE PENDING BEFORE THIS TRIBUNAL AND IN FACT, THE INDIVIDUAL AP PEAL WAS POSTED FOR HEARING ON 05.06.2012 AND THE PARTNERSHIP FIRMS AP PEAL WAS POSTED FOR HEARING ON 06.06.2012. THE ASSESSEE WAS UNDER THE BONAFIDE IMPRESSION THAT BOTH THE APPEALS WERE POSTED ON SAM E DAY, I.E. ON 06.06.2012. THIS WAS ONLY A MISUNDERSTANDING BY TH E ASSESSEE. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT THERE WAS A REASONABLE CAUSE ON THE PART OF THE ASSESSEE FOR NO T APPEARING BEFORE THIS TRIBUNAL ON 05.06.2012 WHEN THE APPEAL WAS TAKEN UP FOR HEARING. 5. WE HAVE CAREFULLY GONE THROUGH THE JUDGMENT OF H ON'BLE DELHI HIGH COURT IN LACHMAN DASS BHATIA HINGWALA (P .) LTD. (SUPRA). THE HON'BLE DELHI HIGH COURT CONSIDERED T HE PROVISIONS OF SECTION 254(2) OF THE INCOME-TAX ACT, 1961 WHICH PR OVIDES RECTIFICATION OF AN ERROR IN THE ORDER OF THIS TRIB UNAL. IN THIS CASE, THE ASSESSEE IS NOT PRAYING FOR ANY RECTIFICATION OF ER ROR, BUT PRAYING FOR RECALL OF ORDER UNDER RULE 24 OF INCOME TAX (APPELL ATE TRIBUNAL) RULES, 1963. THEREFORE, THIS TRIBUNAL IS OF THE CO NSIDERED OPINION THAT THE JUDGMENT OF HON'BLE DELHI HIGH COURT IN LA CHMAN DASS BHATIA HINGWALA (P.) LTD. (SUPRA) WOULD NOT BE APPL ICABLE TO THE FACTS OF THE CASE. 4 M.P. NO.21/MDS/15 6. IN VIEW OF THE ABOVE, IN EXERCISE OF POWER OF TH IS TRIBUNAL UNDER RULE 24 OF INCOME TAX (APPELLATE TRIBUNAL) RU LES, 1963, THE ORDER OF THIS TRIBUNAL DATED 05.06.2012 IS HEREBY R ECALLED. NOW, THE APPEAL OF THE ASSESSEE IN I.T.A. NO.1068/MDS/2011 STANDS RESTORED ON THE ROLLS OF THIS TRIBUNAL. THE REGISTRY IS DIR ECTED TO POST THE APPEAL FOR FINAL DISPOSAL ON 09.06.2015 BEFORE THE REGULAR BENCH. IT IS MADE CLEAR THAT THE DATE OF POSTING OF APPEAL WA S ANNOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES, THEREFORE, THE REGISTRY NEED NOT SERVE SEPARATE NOTICE OF HEARING. IN OTHER WORDS, THIS ORDER OF THE TRIBUNAL SHALL BE TREATED AS NOTI CE OF HEARING FOR 09.06.2015. 6. WITH THE ABOVE OBSERVATION, THE MISCELLANEOUS PE TITION OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSI ON OF HEARING ON 17 TH APRIL, 2015 AT CHENNAI. SD/- SD/- (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) (. !' ) ( ... ) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 0 /DATED, THE 17 TH APRIL, 2015. KRI. 5 M.P. NO.21/MDS/15 + 1,23 43', /COPY TO: 1. PETITIONER 2. 1567 /RESPONDENT 3. * 8, () /CIT(A) 4. * 8, /CIT 5. 39 1, /DR 6. :& ; /GF.