Venkaesh Tirth Construction, Sangli V. Income-tax Officer, Sangli

MA 23/PUN/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6135 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 1 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-01-2018
• Assessment Year: 2010-2011
• Appeal Filed On: 30-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH JHA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE , , , BEFORE SHRI ANIL CHATURVEDI , AM AND SHRI VIKAS AWASTHY, JM M.A. NO. 23 /PUN/20 17 (A RISING OUT OF ITA NO. 816/PN/2014 ) / ASSESSMENT YEAR : 2010 - 11 VENKATESH TIRTH CONSTRUCTION, SURVEY NO. 375, DHAMANI ROAD, NEMINATH NAGAR, SANGLI - 416416 PAN : ABGFS7761R .. /APPLICANT / V/S. THE INCOME TAX OFFICER, WARD 1 (1), SANGLI . / RESPONDENT A SSESSEE BY : SHRI KISHORE PHADKE REVENUE BY : SHRI MUKESH JHA / DATE OF HEARING : 19.01.2018 / DATE OF PRONOUNCEMENT : 23 .01.2018 / ORDER PER VIKAS AWASTHY, JM THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE WITH A PRAYER TO RECALL EX - PARTE ORDER OF TRIBUNAL IN ITA NO. 816/PN/2014 FOR THE ASSESSMENT YEAR 2010 - 11 DATED 25.05.2016. 2. SHRI KISHORE PHADKE APPEARING ON BEHALF OF ASSESSEE SUBMITTED THAT ON THE DATE FIXED FOR HEARING I.E. ON 23.05.2016, THE ASSESSEE COULD 2 MA NO.23/PUN/2017 A.Y.2010 - 11 NOT APP EAR AS NOTICE OF APPEAL WAS DELIVE RED AT THE SITE ADDRESS TO THE WATCHMAN. THE W ATCHMAN FAILED TO COMMUNICATE THE RECEIPT OF SAID NOTICE OF APPEAL TO THE ASSESSEE OUT OF IGNORANCE. THEREFORE, ON 23.05.2016 NEITHER THE ASSESSEE NOR AUTHORIZED REPRESENTATIV E OF ASSESSEE COULD APPEAR BEFORE THE TRIBUNAL FOR HEARING OF APPEAL. THE LD. AR SUBMITTED THAT NON ATTENDANCE OF ASSESSEE ON THE DATE FIXED WAS NOT DELIBERATE. IT WAS A BONA - FIDE FAILURE ON THE PART OF ASSESSEE, AS THE ASSESSEE WAS NOT AWARE OF NOTICE OF APPEAL. THE LD. AR FURTHER SUBMITTED THAT IF AN OPPORTUNITY IS GRANTED TO THE ASSESSEE, THE ASSESSEE WOULD BE ABLE TO SHOW THAT THE ADDITIONS MADE ARE UNJUSTIFIED. THE ASSESSEE HAS PRIMA FACIE GOOD CASE IN ITS FAVOUR. 3. ON THE OTHER HAND, SHRI MUKESH JH A REPRESENTING THE DEPARTMENT VEHEMENTLY OPPOSED THE MISCELLANEOUS APPLICATION OF ASSESSEE FOR RECALLING THE ORDER OF TRIBUNAL DATED 25.05.2016. ASSESSEE FOR RECALLING THE ORDER OF TRIBUNAL DATED 25.05.2016. 4. WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES. A PERUSAL OF DOCUMENTS ON RECORD REVE AL THAT THE NOTICE OF APPEAL WAS SENT TO THE ASSESSEE VIDE RPAD ON THE ADDRESS MENTIONED IN FORM - 36 FILED BY ASSESSEE. THE NOTICE WAS DULY SERVED AT THE ADDRESS MENTIONED IN FORM - 36. HOWEVER, ON THE DATE FIXED NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRES ENTATIVE APPEARED BEFORE THE TRIBUNAL. THE BENCH WAS CONSTRAINED TO PASS EX - PARTE ORDER. THE ASSESSEE/APPLICANT HAS FILED AN AFFIDAVIT ALONG WITH MISCELLANEOUS APPLICATION CITING REASONS FOR NON APPEARANCE BEFORE THE TRIBUNAL ON 23.05.2016. A FTER EXAMINING THE SAME , WE ARE OF CONSIDERED VIEW THAT REASONS FOR NON APPEARANCE OF ASSESSEE OR HIS AUTHORIZED REPRESENTATIVE ON THE DATE OF HEARING OF APPEAL HAS BEEN EXPLAINED. HOWEVER , THERE IS SOME ELEMENT OF 3 MA NO.23/PUN/2017 A.Y.2010 - 11 NEGLIGENCE ON THE PART OF ASSESSEE WHICH CAN BE COMPENSATE D BY PAYMENT OF NOMINAL COST. T HE EX - PARTE ORDER OF TRIBUNAL DATED 25.05.2016 IS RECALLED SUBJECT TO ASSESSEE PAYING COST RS. 5000/ - ( RUPEES FIVE T HOUSAND ONLY) . THE ASSESSEE SHALL PAY THE COS T IN ACCORDANCE WITH RULE 32A(2 ) OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963 . THE ASSESSEE SHALL FURNISH PROOF OF DEPOSITING THE COST WITH THE OFFICE REGISTRY. AFTER RECEIPT OF PROOF OF DEPOSIT OF COST, T HE REGISTRY IS DIRECTED TO LIST THE APPEAL FOR HEARING IN DUE COURSE. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY ASSESSEE IS ALLOWED IN THE TERMS AFORESAID. ORDER PRO NOUNCED ON TUESDAY , THE 23 RD DAY OF JANUARY , 201 8 . SD/ - SD/ - ( / ANIL CHATURVEDI ) ( /VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 23 RD JANUARY , 2018 . SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A), KOLHAPUR 4. THE CIT, KOLHAPUR. 5 . , , , / DR, ITAT, B BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE .