Sh Ratan Chand Lodha, Jaipur V. ITO, Jaipur

MA 22/JPR/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3016 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 26-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS NEENA JEPH
• Assessee Lawyers: MADHUKAR GARG

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM M.A. NO. 22/JP/2015 (ARISING OUT OF ITA NO. 1314/JP/2008 & C.O. NO. 142 /JP/2008) ASSTT. YEAR-2005-06 RAJESH LODHA L/R- SHRI RATAN CHAND LODHA (DECEASED), R/O- F-164A, SURESH MARG, BAGARIA BHAWAN, C-SCHEME, JAIPUR. CUKE VS. INCOME TAX OFFICER WARD (1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO. AARPL 0857 F VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI MADHUKAR GARG, (CA) JKTLO DH VKSJ LS @ REVENUE BY : MRS. NEENA JEPH (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 22/05/2015 ?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 22/05/2015 VKNS'K @ ORDER PER: T.R. MEENA, A.M. THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATI ON ARISING OUT OF THE ORDER DTD. 12/12/2014 OF THIS BENCH IN ITA/JP/2008 & C.O. 142/JP/2008. M.A. NO. 22/JP/2015_ RATAN CHAND LODHA VS. ITO 2 2. BRIEF FACTS ARE THAT DURING THE PENDENCY OF ASSE SSEES APPEAL BEFORE THE LD CIT(A), THE ASSESSEE SHRI RATAN CHAND LODHA EXPIR ED ON 26/1/2008. THE ASSESSEE BROUGHT THIS FACT TO THE NOTICE OF THE LD CIT(A) BY FILING AN ADDITIONAL GROUND TO IMPLEAD THE LEGAL HEIR SHRI RAJESH LODHA, SON OF THE ASSESSEE. THE LD CIT(A), THOUGH, MENTIONED THIS FACT IN HIS ORDER, HOWEVER BY MISTAKE, THE NAME OF THE LEGAL REPRESENTATIVE COULD NOT BE INCOR PORATED IN THE CAUSE TITLE OF HIS ORDER. BOTH THE REVENUE AND ASSESSEE CAME UP IN APPEAL AND C.O. BEFORE THE ITAT WHEREIN ALSO FOLLOWING LD. CIT(A) ORDER THE NA ME OF SHRI RATAN CHAND LODHA WAS MENTIONED IN THE RESPECTIVE MEMOS. G OING BY THE APPEAL AND CO MEMO, THE ITAT DISPOSED OFF THEM ON MERITS BY DISMISSING THE REVENUES APPEAL AND PARTLY ALLOWING THE ASSESSEES C.O. VIDE ORDER DATED 30/1/2009. 3. AGGRIEVED, THE REVENUE PREFERRED APPEAL BEFORE T HE HONBLE RAJASTHAN HIGH COURT, WHICH BY NOTICING THIS MISTAKE VIDE ORD ER DATED 02/3/2012 PASSED THE FOLLOWING ORDER:- REMEDY IS AVAILABLE TO APPROACH THE ITAT AS WELL AS CIT(A) FOR DECLARING THE ORDERS TO BE NULLITY. THUS, THESE APPE ALS, FILED AGAINST A DEAD PERSON, ARE INCOMPETENT. WITH THE AFORESAID LIBERTY, THE APPEALS ARE DISPOS ED OF. M.A. NO. 22/JP/2015_ RATAN CHAND LODHA VS. ITO 3 CONSEQUENT THEREUPON, THE REVENUE PREFERRED M.A. BE FORE THE ITAT BEARING NO. 35/JP/2012 REQUESTING TO RECTIFY THE IT AT ORDER IN CONSONANCE WITH THE HONBLE HIGH COURTS DIRECTION. 4. ALLOWING REVENUES M.A. FOR THIS RECTIFICATION, V IDE ORDER DATED 28/8/2014, THE ITAT RECALLED THE IMPUGNED ORDER. AF TER RECALLING THE ORDER, IT WAS FINALLY HEARD ON 27/10/2014 IN WHICH ASSESSEE WAS NOT PRESENT; REVENUES APPEAL WAS ALLOWED AND ASSESSEES C.O WAS DISMISSED. DUE TO INADVERTENCE ON THE PART OF THE REGISTRY NAME OF THE LEGAL HEIR REM AINED TO BE SUBSTITUTED ON THE FILE DOCKET AND MEMOS, CONSEQUENTLY THE IMPUGNE D ORDER AGAIN MENTIONED THE NAME OF DECEASED ONLY. 5. NOW THE ASSESSEE HAS FILED THE PRESENT M.A. STATI NG AS UNDER:- AFTER THE MISCELLANEOUS APPLICATION HAS BEEN ALLOWE D IT SEEMS THAT THE CASE WAS FIXED FOR HEARING FOR 27/10/2014 AND TH E APPEAL HAS BEEN DECIDED MENTIONING THAT THE ASSESSEE WAS NOT RE PRESENTED (NOTICE RETURNED UNSERVED). IN THIS CONNECTION, IT IS TO INFORM YOU THAT THE A DDRESS WHICH HAS BEEN MENTIONED IN THE ORDER OF THE HONBLE BENCH IS CORRECT AND IN THE PAST NOTICES ISSUED AT THE SAID ADDRESS WERE DULY RE CEIVED BY ME. I AM HEREWITH ENCLOSING PHOTOSTAT COPY OF ENVELOP SENT BY REGISTERED AD INFORMING ABOUT THE DATE OF HEARING FOR 20/06/2014 AND 25/07/2014. THE ENVELOP CONTAINS THE SAME ADDRESS WHICH HAS BEEN MENTIONED IN M.A. NO. 22/JP/2015_ RATAN CHAND LODHA VS. ITO 4 THE ORDER OF THE HONBLE BENCH AND THE SAME WERE DUL Y RECEIVED AT THE SAID ADDRESS. FURTHER, I WAS EARLIER BEING REPRESENTED BY SHRI N. C. DHADDA WHO EXPIRED ON 30/11/2013 AND HIS OFFICE WAS CLOSED AFTE R HIS DEATH. IF ANY NOTICE WAS SENT TO HIS ADDRESS THE SAME WOULD HAVE BE EN RETURNED AS THE OFFICE HAD BEEN CLOSED DUE TO DEATH OF SHRI DHA DDA. IN VIEW OF THE FINDING OF THE HONBLE RAJASTHAN HIG H COURT IT IS APPARENT THAT THE ORDER PASSED IN THE NAME OF SHRI RATAN CHAND LODHA, A DEAD PERSON IS REQUIRED TO BE RECALLED AND APPEAL IS TO BE DECIDED AFTER BRINGING THE LEGAL REPRESENTATIVE ON RECORD. FROM THE ABOVE MENTIONED FACTS, IT WOULD BECOME CLE AR THAT THERE HAS BEEN NO DEFAULT ON MY PART AND IN VIEW OF THE AB OVE MENTIONED FACTS AND CIRCUMSTANCES AS WELL AS THE DECISION OF T HE JURISDICTIONAL HIGH COURT IT IS CLEAR THAT THE ORDER PASSED BY THE HONBLE ITAT, JAIPUR BENCH ON 12/12/2014 CANNOT SURVIVE AND THE SAME DE SERVES TO BE RECALLED AND THE APPEAL AND CROSS OBJECTION TO BE D ECIDED AFRESH. 6. LD. COUNSEL FOR THE ASSESSEE SHRI MADHUKAR GARG (C.A.) CONTENDS THAT THE NOTICE OF HEARING, THOUGH, SENT ON PROPER ADDRE SS, IT WAS PROBABLY NOT RESPONDED DUE TO CLOSURE OF OFFICE OF SHRI N.C. DHA DDA THE COUNSEL. THUS, NON-ATTENDANCE IS WITHOUT ANY DELIBERATE REASON. THE ASSESSEE HAS SUFFICIENT CAUSE IN NOT APPEARING BEFORE THE HONBLE TRIBUNAL. 7. IN ANY CASE, THE HONBLE HIGH COURTS DIRECTION REMAINED PARTLY COMPLIED WITH AS THE NAME OF LEGAL HEIR REMAINED TO BE SUBSTI TUTED WHICH IS CAUSED DUE M.A. NO. 22/JP/2015_ RATAN CHAND LODHA VS. ITO 5 TO THE REASON OF NON-ATTENDANCE OF THE ASSESSEE. TH US, THE MAIN LEGAL DEFICIENCY PROPOSED TO BE RECTIFIED IN THE ITAT ORDE R DATED 12/12/2014 REMAINS TO BE RECTIFIED IN TERMS OF HONBLE RAJASTH AN HIGH COURT. THE NON ATTENDANCE OF THE ASSESSEE IS CAUSED BY A SUFFICIEN T REASON, WHICH HAS RESULTED IN AN EX PARTE ORDER, WHICH RESULTS TO BE R ECALLED UNDER RULE 24 OF THE ITAT RULES AS WELL AS TO GIVE CORRECT EFFECT TO THE H ONBLE HIGH COURTS DIRECTION VIDE ORDER MENTIONED ABOVE. 8. LD. D.R. IS HEARD. 9. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. WE FIND MERIT IN THE CONTENTIONS OF LD. COUNSEL INASMUCH AS (I) NON-ATTENDANCE OF THE ASSES SEE DURING HEARING DATED 27/10/2014 WHICH RESULTED IN EX PARTE HEARING DESER VES TO BE RECALLED AS ASSESSEE WAS PREVENTED BY A SUFFICIENT CAUSE. THEREF ORE, THE IMPUGNED ORDER OF THE ITAT IS RECALLED UNDER RULE 24 OF THE ITAT RUL ES AND (II) THE HONBLE HIGH COURTS DIRECTION ABOUT LEGAL HEIR ALSO NEEDS TO BE IMPLEMENTED FOR WHICH ALSO RECTIFICATION IS REQUIRED WHICH WILL BE EFFECTED BY THIS RECALL. 10. IN THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES, WE ALLOW THE M.A. FILED BY THE ASSESSEE BY RECALLING THE IMPUGNED ORDER OF THE ITAT DATED 12/12/2014. M.A. NO. 22/JP/2015_ RATAN CHAND LODHA VS. ITO 6 THE REGISTRY IS DIRECTED TO IMMEDIATELY IMPLEAD THE NAME OF THE LEGAL HEIR SHRI RAJESH LODHA AS LEGAL HEIR, ISSUE A FRESH NOTICE OF HEARING IN HIS NAME, SINCE THE CAUSE TITLE OF THE FILE IN HIS NAME. ACCORDINGL Y, THE APPEAL IS FIXED FOR HEARING ON 03/8/2015. DATE PRONOUNCED IN THE OPEN C OURT. NO SEPARATE NOTICE OF HEARING WILL BE GIVEN TO THE L.R. OR THE COUNSEL FOR THE ASSESSEE. 11. IN THE RESULT, THE MISC. APPLICATION OF THE ASS ESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/05/2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 22 ND MAY, 2015 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- RAJESH LODHA, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD (1), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (M.A. 22/JP/2015) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR