Shri Vishal Kaushikkumar Patel, Ahmedabad V. The Income Tax Officer, Ward-8(4), Ahmedabad

MA 233/AHD/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3730 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 27-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Assessee Lawyers: P M PATEL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER M.A. NO.233/AHD/2018 (IN ITA NO. 648/AHD/2015) (ASSESSMENT YEAR : 2010-11) VISHAL KAUSHIKKUMAR PATEL, 145, NANDANBAUG SOCIETY, APPLE WOODS ROAD, SHELA, AHMEDABAD. VS. THE ITO, WARD 8(4), AHMEDABAD. [PAN NO. ABAPP 0581 C] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI P. M. PATEL, A.R. RESPONDENT BY : SHRI LALIT P. JAIN , SR. D.R. DATE OF HEARING 21/12/2018 DATE OF PRONOUNCEMENT 18/02/2019 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE WITH A PRAYER FOR RESTORATION OF THE APPEAL BY RECALLING THE ORDER DA TED 05.09.2017 PASSED BY THIS TRIBUNAL ORDER. AN APPLICATION U/S 254(2) R.W.R. 24 WAS FILE D BY THE ASSESSEE IN THAT REGARD WHICH IS BEFORE US. 2. IT APPEARS FROM THE PLEADING OF THE SAID APPLICA TION THAT THE DATE OF HEARING OF APPEAL WAS FIXED ON 04/09/2017 WHEREAS THE ASSESSEE RECEIVED THE NOTICE DATED 31.08.2017 AS AN INTIMATION OF SUCH HEARING ON 06.0 9.2017. AS A RESULT WHEREOF THE - 2 - MA N O.233/AHD/2018(IN ITA NO.648/A/15) VISHAL KAUSHIKKUMAR PATEL VS. LD ITO ASST.YEAR 2010-11 ASSESSEE FAILED TO APPEAR BEFORE THE HONBLE BENCH AND SINCE NONE APPEARED ON BEHALF OF THE ASSESSEE, THE HONBLE TRIBUNAL WAS PLEASED TO P ASS AN EX-PARTE ORDER ON 05/09/2017. FURTHER THAT, THE ORDER COPY OF THE SAID EX-PARTE O RDER DATED 05/09/2017 WAS RECEIVED BY THE ASSESSEE ONLY ON 13.08.2018. 3. THE ASSESSEES SUBMISSIONS IS ON TWO COUNTS; FIR STLY, SINCE THE NOTICE INTIMATING THE DATE OF HEARING ON 04.09.2017 WAS RECEIVED ON 0 6.09.2017, THE ASSESSEE WAS NOT BEEN ABLE TO APPEAR BEFORE THE HONBLE BENCH. HENCE THE MATTER WAS HEARD EX-PARTE. THERE WAS NO LATCHES ON THE PART OF THE ASSESSEE IN NOT APPEA RING BEFORE THE LEARNED TRIBUNAL AT THE TIME OF HEARING OF THE APPEAL; SECONDLY, THE COPY O F THE EX-PARTE ORDER DATED 05.09.2017 WAS RECEIVED BY THE ASSESSEE AS ON 13.08.2018 I.E. MORE OR LESS AFTER A LAPSE ON 11 MONTHS FROM THE PASSING OF THE SAID ORDER. SINCE THE ASSES SEE WAS NOT HAVING THE KNOWLEDGE OF THE SAID EX-PARTE ORDER, THE ASSESSEE COULD NOT FIL E ANY APPLICATION FOR RESTORATION OF SUCH APPEAL WITHIN SIX MONTHS IN TERMS OF THE AMENDED PR OVISION OF SECTION 254(2). THE SITUATION WAS BEYOND THE CONTROL OF THE ASSESSEE. I N THAT VIEW OF THE MATTER THE ASSESSEE PRAYED FOR RESTORATION OF APPEAL. 4. HEARD THE PARTIES, PERUSED THE RELEVANT MATERIAL S AVAILABLE ON RECORD. WE FIND THAT THE GROUND TAKEN BY THE ASSESSEE BOTH FOR NOT APPEA RING ON THE DATE OF HEARING BEFORE THE LEARNED TRIBUNAL AS WELL AS IN NOT PREFERRING THE A PPLICATION FOR RESTORATION OF THE APPEAL BY RECALLING THE EX-PARTE ORDER OF DISMISSAL DATED 05.09.2017 IS JUST AND REASONABLE. WE FIND NO LATCHES ON THE PART OF THE ASSESSEE IN BOTH THE OCCASIONS. IN THAT VIEW OF THE MATTER, WE ARE OF THE CONSIDERED OPINION TO RECALL OUR ORDER DATED 05.09.2017 AND RESTORE THE MATTER TO THE FILE FOR FRESH HEARING. - 3 - MA N O.233/AHD/2018(IN ITA NO.648/A/15) VISHAL KAUSHIKKUMAR PATEL VS. LD ITO ASST.YEAR 2010-11 5. WE, THEREFORE, RECALL TRIBUNALS ORDER DATED 05. 09.2017, MATTER BE PLACED ON BOARD ON 25.02.2019. SINCE THE LEARNED ADVOCATE IS ALREADY BEFORE US AT THE TIME OF HEARING OF THIS MISC. APPLICATION, SERVICE OF NOTICE UPON THE ASSESSEE IS DISPENSED WITH. 6. IN THE RESULT, MISC. APPLICATION IS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 18/02/2019 SD/- SD/- ( PRADIP KUMAR KEDIA ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 18/02/2019 PRITI YADAV, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A). 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 05/02/2019. (DICTATION PAGES 4) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 06/02/2019 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 06/02/2019 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER