Shri Dipesh Prabhudas Kothari, HUF, Ahmedabad V. The Income Tax Officer, Ward-3(2), Ahmedabad

MA 23/AHD/2020

AI Insights

The case revolves around a Miscellaneous Application filed by Shri Dipesh Prabhudas Kothari, HUF, seeking the recall of an earlier ITAT order which had dismissed his appeal ex parte due to non-appearance. The assessee contended that he did not receive the notice for the hearing as the address on record was outdated and the property was occupied by unauthorized persons. The Tribunal found the affidavit and explanations provided by the assessee credible and genuine, leading to the decision to recall the previous order and schedule a new hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 125718 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-08-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 27-07-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 26-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, AHMEDABAD BEFORE SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER & Ms. MADHUMITA ROY, JUDICIAL MEMBER M . A. N o . 23/ A hd / 20 2 0 ( I n I TA N o . 2 79 8/ A hd/ 2 0 13 ) (A s se s s m e n t Y e a r : 2 0 09 - 1 0 ) Sh r i Di pe s h P ra b h ud a s Ko th ari , H U F 31 5 , As to d i a, R a n g a ti B az ar , A h me da ba d - 38 0 0 02 Ne w Ad d r e s s : C /o Shr i Pr a f ul lb ha i Pr a bh ud a s K o t ha ri, B / 2 /1 1, Sa g ar A pp a r t me n ts , Ne ar Sh ya m al C r o s s R o a ds , Sat e l li te, A h m ed ab ad- 38 0 0 15 बनाम/ V s . T h e I n co me T a x O f f ic er Wa r d 3( 2) , A h m e d a b ad थायी लेखा सं./जीआइआर सं./P A N / G I R N o . : A A B KH 2 5 4 7 P (अपीलाथ /Appellant) . . ( यथ / Respondent) अपीलाथ ओर से /Appellant by : Shri M. K. Patel, Advocate यथ क ओर से/Respondent by : Shri Ashok Kumar Suthar, Sr. DR स ु नवाई क तार ख / D a t e o f H e a r i ng 28/07/2023 घोषणा क तार ख /D a t e o f P ro n o u nc e me n t 02/08/2023 O R D E R PER Ms. MADHUMITA ROY - JM: The Miscellaneous Application has been filed by the assessee seeking recall of the order dated 05.05.2017 passed by the Co-ordinate Bench in the appeal filed by the assessee being ITA No. 2798/Ahd/2013 for A.Y. 2009-10, whereby and whereunder - 2 - MA No. 23/Ahd/2020(in ITA No.2798/A/13) Shri Dipesh P. Kothari, HUF vs. ITO Asst.Year – 2009-10 in the absence of the representative of the assessee, the matter was heard ex parte and dismissed on merit. 2. It is the case of the assessee that the notice for fixing of the date of hearing issued by the Tribunal sent by RPAD though served upon the assessee, returned back unserved. In fact, it is the case of the assessee that rented property on which the notice was sent was taken over by unauthorized persons. The assessee could not make appearance before the Tribunal on the date of hearing. However, it was also admitted by the assesse that due to lack of knowledge of the legal procedure, the change of address was neither brought to the notice of the ITAT by the assessee. The situation has dealt with by the assessee by an affidavit affirmed on 24 th July, 2023, the relevant portion whereof is as follows: “(1) That the appeal filed by the assessee above-named for the assessment year 2009-10 bearing ITA.No.2798/Ahd/2013 is decided by Hon'ble ITAT, Ahmedabad Bench 'D', Ahmedabad vide order dated 05.05.2017, whereby the appeal of the assessee is dismissed. (2) It is respectfully submitted that on page no. 2 of the above order of Hon'ble ITAT it is mentioned that the notice of hearing sent by RPAD was returned back unserved. It is respectfully submitted that the assessee has not received the notice of hearing as the address mentioned was of a shop taken on rent by firm M/s Prabhudas Lallubhai Kothari. However the said firm has closed its business activities since a long time. Moreover, the possession of the said rented property was later on taken over by unauthorized persons. However, the assessee not being aware of the legal procedure could not inform the Hon'ble ITAT regarding the change of address. Under these circumstances, the matter went by default and resulted in the matter being dismissed ex- parte. (3) The assessee came to know about the order of Hon'ble ITAT only when our Advocate checked the online status of the appeal and it was mentioned that the assessee's appeal is dismissed by Hon'ble ITAT. Thereafter, upon inquiry with the Registry of Hon'ble ITAT, it was found that the original order was returned back unserved. Our AR Shri Mehul K. Patel, Advocate received the original order personally from the Registry on 27/07/2019. (4) The new address of the assessee is as under: Dipesh Prabhudas Kothari HUF C/o Shri Prafullbhai Prabhudas Kothari, B/2/11, Sagar Appartments, Near Shyamal Cross Roads, - 3 - MA No. 23/Ahd/2020(in ITA No.2798/A/13) Shri Dipesh P. Kothari, HUF vs. ITO Asst.Year – 2009-10 Satellite, Ahmedabad-380015. (5) It is humbly prayed that the applicant is very much interested in pursuing the matter and therefore it is humbly prayed that the above order may kindly be recalled, in terms of Rule 24 of ITAT Rules, and in the interest of justice the applicant be given an opportunity of hearing, and oblige. (4) Supporting Affidavit is enclosed herewith.” 3. Such contention made by the Ld. Counsel appearing for the assessee has not been controverted with all his fairness by the Ld. DR. Thus, having heard the Ld. Counsel for the parties and having regard to the facts and circumstances of the case, particularly, the statement made by the applicant of affidavit which seems to be genuine, we recall the order dated 05.05.2017 passed by the Co-ordinate Bench. The Registry is also directed to fix the matter on board for hearing on 24 th August, 2023. Notice to that effect be served upon the respective parties. 4. In the result, the Miscellaneous Application filed by the assessee is allowed. This Order pronounced on 02/08/2023 Sd/- Sd/- (ANNAPURNA GUPTA) (MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 02/08/2023 S. K. SINHA True Copy आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं%धत आयकर आय ु 'त / Concerned CIT 4. आयकर आय ु 'त(अपील) / The CIT(A). 5. *वभागीय -त-न%ध, आयकर अपील य अ%धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड3 फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ!धकरण, अहमदाबाद / ITAT, Ahmedabaditio