Canara Bank, Ahmedabad V. The Addl.CIT.,TDS Range, Ahmedabad

MA 238/AHD/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0138 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 26-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA
• Assessee Lawyers: VIVEK CHANDRA
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE SHRI D.K. TYAGI, J.M. AND SHRI T.R. MEENA, A.M.) M.A. NO.238/AHD/2012 ARISING OUT OF ITA NO.1634/AHD/2010 (A.Y:2005-06) CANARA BANK, SABARMATI BRANCH, NR. PANCHSHEEL HOSPITAL SABARMATI HIGHWAY, AHMEDABAD PAN: AAACC6106G VS ADDL. CIT, TDS RANGE AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY SRI VIVEK CHANDRA RESPONDENT BY SRI Y.P. VERMA, SR. D.R. DATE OF HEARING: 05.4.2013 DATE OF PRONOUNCEMENT: 24 -5 -2013 ORDER PER SHRI T.R. MEENA, A.M. : THE ASSESSEE FILED APPEAL VIDE I.T.A NO.1634/AHD/20 10 FOR THE ASSESSMENT YEAR 2005-06. IN THIS CASE, NOTICE OF HE ARING WAS ISSUED FROM TIME TO TIME AND CASE WAS FIXED FOR 7.6.2012 ON THA T DATE NO ONE APPEARED FROM THE SIDE OF APPELLANT AND NO ADJOURNMENT WAS S OUGHT, THEREFORE, THIS BENCH HAS PASSED AN ORDER FOR DISMISSING THE ASSESS EES APPEAL BY FOLLOWING THE DECISION OF MULTIPLAN (INDIA) (P) LTD., (38 ITD 320). 2. NOW, THE ASSESSEE FILED THE PRESENT M.A. ON 26.1 2.2012 WHICH WAS FIXED FOR HEARING ON 4.4.2013. THE GROUNDS AND SUBM ISSIONS OF M.A. ARE AS UNDER: M.A. NO.238/A/2012 ARISING OUT OF ITA NO.1634/A/2010 ) (A.Y.:2005-06) (2) 1. THE APPELLANT ABOVE NAMED SUBMITS THIS MISC. AP PLICATION U/S. 254(2) OF THE IT ACT 1961 (FOR SHORT THE ACT) FOR RESTORATION OF THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL, AHMEDAB AD BENCH-B AHMEDABAD, WHICH WAS PASSED EX-PARTE ON 7.6.2012 WH EREBY THE APPEAL OF THE APPLICANT HAS BEEN DISMISSED FOR WANT OF PROSECUTION. 2. THE APPLICANT SUBMITS THAT BEING AGGRIEVED AND D ISSATISFIED WITH THE ORDER PASSED U/S 250 ON 31-12-2009 BY CIT( A),-VI, AHMEDABAD , IT HAD PREFERRED AN APPEAL BEFORE THE A PPELLATE TRIBUNAL WHEREIN THE APPLICANT HAD CHALLENGED THE P ENALTY LEVIED U/S 271C BY THE RESPONDENT. 3. THE AFORESAID APPEALS HAVE BEEN DISPOSED OF EX-P ARTE FOLLOWING THE DECISION IN CASE OF MULTIPLAN (INDIA) PVT.LTD, ETC. ON THE GROUND THAT THOUGH NOTICE FIXING THE HEARING ON 07-06-2012 WAS SERVED ON THE APPLICANT, NONE APPEARED ON ITS B EHALF NOR SOUGHT ADJOURNMENT. 4. THE APPLICANT SUBMIT WITH GREATEST RESPECT THAT THERE WAS A SUFFICIENT CAUSE FOR FAILURE TO ATTEND ON THE DATE OF HEARING INASMUCH AS THE SAID NOTICE OF HEARING WAS FORWARDE D ON 29-5- 2012 TO THE AUTHORIZED REPRESENTATIVE- CA SHRI AJAY SHARMA OF JAIN, KEDIA & SHARMA CA AT 13, MILL OFFICERS COLONY , B/H OLD RBI BUILDGING, ASHARAM ROAD, A'BAD WHO WERE RETAINE D TO APPEAR AND REPRESENT IN THIS APPEAL AS WAS THE CASE IN APPEAL BEFORE CIT(A). THE APPLICANT THEREFORE BONAFIDE BEL IEVED THAT THE AR WOULD APPEAR AND DO NEEDFUL AS MAY BE REQUIRED. HOWEVER, IT APPEARS FROM THE ORDER OF THE TRIBUNAL THAT AR H AS FAILED TO APPEAR OR SEEK ADJOURNMENT ON THE DATE OF HEARING W HICH HAD LED TO EX-PARTE ORDER. THE APPLICANT SUBMITS THAT T HE ASSESSEE SHOULD NOT BE MADE TO SUFFER FOR THE LAPSE ON PART OF THE AR. RELIANCE IS PLACED ON THE DECISIONS IN CASE OF RAFIQ V. MUNSHILAL (AIR 1981 SC 1400), MAHAVIRPRASAD JAIN V. CIT ( 172 ITR 331)(MP),CONCORD OF INDIA INSURANCE CO LTD V. SMT. NIRMALADEVI (118 ITR 507)(SC) .THUS THERE WAS A SUFFICIENT CAUSE FOR FAILURE TO ATTEND/SEEK ADJOURNMENT ON THE DATE OF HEARING. IT WAS NOT ATTRIBUTABLE TO THE WILLFUL OR DELIBERATE NEGLECT OR OMISSION PART OF THE APPLICANT. 5. EVEN, OTHERWISE, THE HEARING FIXED ON 7-6-2012 W AS THE SINGLE OPPORTUNITY ALLOWED TO THE APPLICANT WHICH CONSIDER ING THE PRINCIPLES OF NATURAL JUSTICE AND EQUITY, APART FRO M THE COMPLEX FACTS INVOLVED IN THE APPEAL, A FURTHER OPPORTUNITY OUGHT TO HAVE BEEN ALLOWED. THE APPLICANT IS VERY MUCH ANXIOUS TO CONDUCT THE APPEAL HENCE, THE PRESENT APPLICATION. IN VIEW OF A BOVE FACTS M.A. NO.238/A/2012 ARISING OUT OF ITA NO.1634/A/2010 ) (A.Y.:2005-06) (3) AND CIRCUMSTANCES, THE APPLICANT SUBMITS THAT THE O RDER PASSED BY THE HON'BLE TRIBUNAL SHOULD BE RECALLED AND THE APPEALS SHOULD BE FIXED FOR FRESH HEARING FOR DISPOSAL O ME RITS, OTHERWISE IT WOULD CAUSE GREAT INJUSTICE AND HARDSHIP TO THE APPLICANT WITHOUT ANY CAUSE ATTRIBUTABLE TO IT. 7. NEEDLESS TO SAY FOR THIS ACT OF KINDNESS, THE AP PLICANT AS IN DUTY BOUND SHALL FOR EVER PRAY AND REMAIN GRATEFUL. 3. THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMIT TED THAT THIS WAS THE MISTAKE OF THE A.R., AND THEREFORE, THE ASSESSE E SHOULD NOT SUFFER ON ACCOUNT OF NON APPEARANCE OF A.R., THEREFORE, HE RE QUESTED TO REVIVE THE APPEAL. THE LEARNED D.R. APPEARING ON BEHALF OF THE REVENUE HAS FAIRLY ACCEPTED THE PROPOSAL TO DECIDE THE CASE ON MERIT. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD AND ARE SATISFIED THAT ASSESSEE WAS PREVE NTED BY SUFFICIENT CAUSE IN FAILING TO PROSECUTE THE APPEAL BEFORE US, THEREFORE, THE ORDER DATED 07.6.2012 IS HEREBY RECALLED. 5. REGISTRY IS DIRECTED TO FIX THIS CASE IN REGULA R COURSE. 6. IN THE RESULT, THE M.A. IS ALLOWED. SD/- SD/- ( D.K. TYAGI ) JUDICIAL MEMBER ( T.R. MEENA ) ACCOUNTANT MEMBER TRUE COPY PRABHAT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, AHMEDABAD