M/s. Romp Merchants (P) Ltd., Kolkata V. ITO, Ward - 4(2), Kolkata

MA 232/KOL/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5061 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 21-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANNA
• Keywords: Period of limitation; Reasonable cause; Set aside
• Section: 143(3); 254(2); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI A.T.VARKEY, JM &DR. A.L.SAINI, AM M.A. NO.232/KOL/2018 (ARISING OUT OF ./ITA NO.780/KOL/2016) ( / ASSESSMENT YEAR: 2008-09) M/S ROMP MERCHANTS PVT. LTD. 205, OLD CHINA BAZAR STREET, KOLKATA-700001 VS. ITO, WARD-4(2), KOLKATA ./ ./PAN/GIR NO.: AADCR 8419 C (APPELLANT) .. (RESPONDENT) ./ITA NO.780/KOL/2016 ( / ASSESSMENT YEAR: 2008-09) M/S ROMP MERCHANTS PVT. LTD. 205, OLD CHINA BAZAR STREET, KOLKATA-700001 VS. ITO, WARD-4(2), KOLKATA ./ ./PAN/GIR NO.: AADCR 8419 C (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI SUBASH AGARWAL, ADVOCATE RESPONDENT BY : SHRI JAYANTA KHANNA, JCIT, SR. DR / DATE OF HEARING : 20/09/2019 /DATE OF PRONOUNCEMENT : 23/10/2019 / O R D E R PER DR. A. L. SAINI: THIS IS A MISCELLANEOUS APPLICATION FILED BY THE A SSESSEE PRAYING TO RECALL THE ORDER OF THE TRIBUNAL DATED 20/11/2016. M/S ROMP MERCHANTS PVT. LTD. MA NO. 232KOL/2018 (ARISING OUT OF I.T.A. NO. 780/KOL/2016) I.T.A. NO. 780/KOL/2016 ASSESSMENT YEAR:2008-09 P PP PA AA AG GG GE EE E | || | 2 22 2 2. WE NOTE THAT THERE IS A DELAY OF 204DAYS IN FILING THIS MA IN TE RMS OF SECTION 254(2) AS POINTED OUT BY THE REGISTRY. AFTER CONSIDERING T HE SUBMISSIONS OF BOTH THE SIDES ON THIS ASPECT OF DELAY, WE FIND THAT THE SAME IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF OM PRAKASH SANGWAN VS ITO (2018) 94 TAXMANN.COM 394 (DELHI) WHEREIN IT WAS HELD THAT RULE 24 OF THE INCOME TAX APPELLATE TRIBUNALS RULES AND THE OTHER PROVISIONS OF BOTH THE INCOME TAX ACT AND THE RULES INDICATE THAT THE ITAT HAS TO DECIDE THE APPE ALS OR MATTERS BEFORE IT ON MERITS AND ITS FAILURE TO DO SO IMPLIES THAT IT EXCEEDED ITS J URISDICTION AND INSTEAD OF DECIDING ON THE MERITS, REJECTED THE APPEAL MERELY FOR NON-PROSECUT ION. IT WAS HELD THAT SINCE RULE 24 DOES NOT STIPULATE ANY PERIOD OF LIMITATION WITHIN WHICH THE PARTY AGGRIEVED BY EX-PARTE ORDER CAN APPROACH THE TRIBUNAL, IT IS OPEN TO THE APPLIC ANT TO APPROACH THE TRIBUNAL WITH THE SUITABLE APPLICATION FOR RESTORATION OF THE APPEALS AND THE TIME PERIOD STIPULATED IN SECTION 254(2) OF THE ACT IS NOT APPLICABLE. FOLLOWING THIS DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF OM PRAKASH SANGWAN, WE HOLD THAT THI S APPLICATION FILED BY THE ASSESSEE FOR RECALL OF THE EX-PARTE ORDER AND RESTORATION OF ITS APPEAL IS NOT BARRED BY LIMITATION. FOR THAT WE RELY ON THE JUDGMENT OF THE CO-ORDINATE BENCH OF ITAT KOLKATA IN THE CASE OF MAA TARA AGRO INDUSTRIES IN MA NO. 179/KOL/2018 DATED 21/12/2018 WHEREIN IT WAS HELD THAT: 2. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AT THE OUTSET, IT IS NOTICED THAT THIS MISCELLANEOUS APPLICATION SEEKING RECALL OF THE EX-PARTE ORDER OF THE TRIBUNAL DATED JULY 12, 2017 HAS BEEN FILED BY THE ASSESSEE ON 25.09.2018 A ND THE SAME HAVING BEEN FILED BY THE ASSESSEE AFTER 237 DAYS FROM THE PERIOD OF 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE CORRESPONDING ORDER WAS PASSED B Y THE TRIBUNAL, THERE IS A DELAY OF 237 DAYS IN FILING THE SAME IN TERMS OF SE CTION 254(2) AS POINTED OUT BY THE REGISTRY. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE SIDES ON THIS ASPECT OF DELAY, I FIND THAT THE SAME IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF OM PRAKASH SANGWAN VS ITO (2018) 94 TAXMANN.COM 394 (DELHI) WHEREIN IT WAS HE LD THAT RULE 24 OF THE INCOME TAX APPELLATE TRIBUNALS RULES AND THE OTHER PROVISIONS OF BOTH THE INCOME TAX ACT AND THE RULES INDICATE THAT THE ITAT HAS TO DECIDE THE APPEALS OR MATTERS BEFORE IT ON MERITS AND ITS FAILURE TO DO S O IMPLIES THAT IT EXCEEDED ITS JURISDICTION AND INSTEAD OF DECIDING ON THE MERITS, REJECTED THE APPEAL MERELY FOR NON-PROSECUTION. IT WAS HELD THAT SINCE RULE 24 DOE S NOT STIPULATE ANY PERIOD OF LIMITATION WITHIN WHICH THE PARTY AGGRIEVED BY EX-P ARTE ORDER CAN APPROACH THE TRIBUNAL, IT IS OPEN TO THE APPLICANT TO APPROACH T HE TRIBUNAL WITH THE SUITABLE APPLICATION FOR RESTORATION OF THE APPEALS AND THE TIME PERIOD STIPULATED IN SECTION 254(2) OF THE ACT IS NOT APPLICABLE. FOLLOWING THIS DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF OM PRAKASH SANGWAN, I HOLD THA T THIS APPLICATION FILED BY THE ASSESSEE FOR RECALL OF THE EX-PARTE ORDER AND R ESTORATION OF ITS APPEAL IS NOT BARRED BY LIMITATION. M/S ROMP MERCHANTS PVT. LTD. MA NO. 232KOL/2018 (ARISING OUT OF I.T.A. NO. 780/KOL/2016) I.T.A. NO. 780/KOL/2016 ASSESSMENT YEAR:2008-09 P PP PA AA AG GG GE EE E | || | 3 33 3 3. ON MERIT, I HAVE CONSIDERED THE REASON GIVEN BY THE ASSESSEE FOR ITS NON- APPEARANCE BEFORE THE TRIBUNAL ON JULY 12, 2017 WHE N THE APPEAL WAS CALLED FOR HEARING. KEEPING IN VIEW THE SAID REASON, I AM SATI SFIED THAT THERE WAS SUFFICIENT CAUSE FOR THE NON-APPEARANCE OF THE ASSESSEE BEFORE THE TRIBUNAL ON JULY 12, 2017. I ACCORDINGLY RECALL THE EX-PARTE ORDER PASSE D BY THE TRIBUNAL DATED JULY 12, 2017 KEEPING IN VIEW THE PROVISO TO RULE 24 OF THE APPELLATE TRIBUNAL RULES, 1963 AND RESTORE THE APPEAL OF THE ASSESSEE TO ITS ORIGINAL NUMBER. THE REGISTRY IS DIRECTED TO FIX THE SAID APPEAL FOR HEARING AFRESH BEFORE THE REGULAR BENCH ON 21.01.2019. 3. THE CASE OF THE ASSESSEE IN THIS MISCELLANEOUS A PPLICATION IS THAT ASSESSEE COULD NOT RECEIVE THE NOTICE FROM THE TRIBUNAL THEREFORE HE COULD NOT ATTEND THE HEARING BEFORE THE TRIBUNAL. THE LD. COUNSEL STATED THE RE ASONS OF NON-APPEARANCE BEFORE THIS TRIBUNAL ON THE DATE OF HEARING IN THE MA FIL ED BY HIM WHICH IS GIVEN BELOW: 2. THAT THE SAID APPEAL WAS DISPOSED OFF EX-PARTE AS NOBODY COULD APPEAR ON BEHALF OF THE APPELLANT ASSESSEE ON THE DATE OF HEA RING. A COPY OF THE ORDER DATED 13.06.2018 OF THE HONBLE INCOME TAX APPELLATE TRIBUNAL IS ENCLOSED HEREWITH AND MARKED AS ANNEXUR E-A. 3.THAT THE REPRESENTATION BEFORE THE HONBLE INCOME TAX APPELLATE TRIBUNAL COULD NOT BE MADE SINCE THE NOTICE OF HEARING WAS N OT SERVED ON THE ASSESSEE. 4. YOUR PETITIONER STATES THAT IF THE ORDER DATED 2 0.11.2017 DISMISSING THE APPEAL OF THE ASSESSEE COMPANY IS NOT RECALLED, YOUR PETIT IONER WOULD SUFFER IRREPARABLE LOSS AND INJURY. 4. WE NOTE THAT THE ASSESSEE COULD NOT ATTEND THE H EARING, AS THE NOTICE OF HEARING WAS NOT SERVED ON THE ASSESSEE. WE ARE OF THE VIEW THAT THIS IS A REASONABLE CAUSE TO RECALL THIS MA; THEREFORE IN THE INTEREST OF JUS TICE AND FAIR PLAY WE RECALL THE ORDER OF TRIBUNAL DATED 20.11.2017. 5. THE ABOVE MA WAS LISTED FOR HEARING TODAY. WE HA VE ALLOWED THE MA OF THE ASSESSEE. HOWEVER, WITH THE CONSENT OF BOTH THE PAR TIES THE RELATED APPEAL ITSELF HAS BEEN HEARD TODAY AND AS SUCH, THE ORDER IS BEING PA SSED ON MERITS. M/S ROMP MERCHANTS PVT. LTD. MA NO. 232KOL/2018 (ARISING OUT OF I.T.A. NO. 780/KOL/2016) I.T.A. NO. 780/KOL/2016 ASSESSMENT YEAR:2008-09 P PP PA AA AG GG GE EE E | || | 4 44 4 6. THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERT AINING TO ASSESSMENT YEAR 2008- 09, IS DIRECTED AGAINST THE ORDER PASSED BY THE COM MISSIONER OF INCOME TAX (APPEAL)-2, KOLKATA, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 147 / 143(3) /263 / 143(3) O F THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 27/03/2014. 7. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE SUBMITTED THAT DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE COULD NOT RECEI VE THE NOTICE FROM THE OFFICE OF THE LD. CIT(A). THEREFORE, HE COULD NOT ATTEND THE HEARING. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED BEFORE THE BENCH THAT AN ANOTHER OPPORTUNITY OF HEARING MAY BE GRANTED TO THE ASSESSEE , TO PLEAD HIS CASE BEFO RE THE LD. CIT(A). 8. THE LD. DR, ON THE OTHER HAND, HAS NOT CONTROVER TED THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 9. WE HEARD BOTH THE PARTIES AND CAREFULLY GONE THR OUGH THE SUBMISSION PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCUMENTS FURNISHED AND THE CASE LAWS RELIED UPON, AND PERUSED THE FACT OF THE CASE INCLU DING THE FINDINGS OF THE LD CIT(A) AND OTHER MATERIALS AVAILABLE ON RECORD. WE NOTE THAT ASSESSEE COULD NOT PLEAD HIS CASE BEFORE LD. CIT(A) AS NOTICE FOR HEAR ING WAS NOT SERVED ON HIM. HOWEVER, WE NOTE THAT LD CIT(A) ALSO DID NOT CONSID ER THE APPEAL OF THE ASSESSEE ON MERITS. THEREFORE, WE ARE OF THE VIEW THAT ONE M ORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE THE LD CIT(A). THEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE MERITS OF THE CASE, IN THE INTEREST OF JUSTICE, WE RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) F OR DE NOVO ADJUDICATION AND PASS A SPEAKING ORDER AFTER AFFORDING SUFFICIENT OPPORTU NITY OF BEING HEARD TO THE ASSESSEE, WHO IN TURN, IS ALSO DIRECTED TO CONTEST HIS STAND FORTHWITH. THEREFORE, WE DEEM IT FIT AND PROPER TO SET ASIDE THE ORDER OF TH E LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE TH E ISSUE AFRESH ON MERITS. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. M/S ROMP MERCHANTS PVT. LTD. MA NO. 232KOL/2018 (ARISING OUT OF I.T.A. NO. 780/KOL/2016) I.T.A. NO. 780/KOL/2016 ASSESSMENT YEAR:2008-09 P PP PA AA AG GG GE EE E | || | 5 55 5 10. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED AND THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTIC AL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 23.10.201 9. SD/- ( A.T. VARKEY ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 23/10/2019 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. M/S ROMP MERCHANTS PVT. LTD. 2. ITO, WARD-4(2), KOLKATA 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES