M/s Anshul Goyal Land & Housing Ltd., Ludhiana V. DCIT, Ludhiana

MA 246/CHANDI/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7894 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 31-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDER KANTA SR DR
• Assessee Lawyers: PANKAJ BHALLA
• Section: 274

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH !, ' # . %.. . & , '( # BEFORE: SMT. DIVA SINGH, JM & DR. B.R.R.KUMAR, AM M.A. 246/CHD/2018 IN ./ ITA NO. 157/CHD/2012 / ASSESSMENT YEAR : 2008-09 M/S ANSHUL GOYAL LAND & HOUSING LTD., VILLAGE GILL, LUDHIANA. VS THE DCIT, C-VII, LUDHIANA. ./ PAN NO: AAFCA7899D / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI PANKAJ BHALLA, CA # ! ' / REVENUE BY : SMT. CHANDER KANTA, SR.DR $ % ! &/ DATE OF HEARING : 05.08.2019 '()* ! &/ D ATE OF PRONOUNCEMENT : 07.08.2019 ')/ ORDER PER DIVA SINGH BY THE PRESENT MISCELLANEOUS APPLICATION FILED U/S 254 (2) OF THE INCOME TAX ACT,1961 THE ASSESSEE PRAYS FOR RECA LL OF THE EX-PARTE ORDER DATED 14.03.2018 IN ITA NO. 157/CHD/2012 PERT AINING TO 2008-09 ASSESSMENT YEAR WHEREIN THE APPEAL OF THE A SSESSEE WAS DISMISSED IN-LIMINE FOR NON-REPRESENTATION. 2. THE LD. AR INVITING ATTENTION TO THE REVISED MIS CELLANEOUS APPLICATION FILED SUBMITTED THAT IT IS CORRECT THAT THE ASSESSEE OVER A PERIOD OF TIME HAD BEEN GIVEN VARIOUS OPPORTUNITIES ON ACCOUNT OF WHICH DISMISSING THE ADJOURNMENT DATED 06.02.2018, THE APPEAL WAS DISMISSED. REFERRING TO PARA 8 OF THE REVISED APPL ICATION, IT WAS SUBMITTED BY THE LD. AR THAT FOR ARGUING THE APPEAL SUPPORTING M.A. 246/CHD/2018 IN ITA 157/CHD/2012 PAGE 2 OF 5 EVIDENCES WERE NOT AVAILABLE WITH THE ASSESSEE. AC CORDINGLY, TIME AND AGAIN ADJOURNMENTS HAD BEEN MOVED. IT WAS SUBM ITTED THAT SINCE THE EVIDENCES REQUIRED WERE THIRD PARTY EVIDE NCES AND NOT READILY AVAILABLE, THE PROCUREMENT OF THESE TOOK TI ME. THESE EVIDENCES ARE NOW AVAILABLE AND THE ASSESSEE IS REA DY TO ARGUE THE APPEAL ON MERITS AND SHALL NOT NEED TO SEEK TIME. ACCORDINGLY, IT WAS HIS PRAYER THAT THE EX-PARTE ORDER MAY BE RECALLED. THE SAID SUBMISSION, IT WAS SUBMITTED, IS SUPPORTED BY THE A FFIDAVIT OF THE MR. SACHIN GOYAL, DIRECTOR. SPECIFIC ATTENTION WAS INV ITED TO PARA 5 AND 6 OF THE AFFIDAVIT DATED 27.05.2019, WHICH READ AS UNDER : 5 . THAT I HAVE FILED AN UNDERTAKING NO FRIVOLOUS ADJOU RNMENT SHALL BE SOUGHT. THAT ALL ENDEAVOR SHALL BE MADE TO SUBMIT THE PAPER BOOK BEFORE THE DATE OF HEARING IF AN OPPORTUNITY IS GRANTED TO US.(UNDERTAKING AS ANNEXURE-3) 6. THE DELAY IN FILING OF PAPER BOOK AND ARGU ING THE APPEAL IS ATTRIBUTABLE TO THE REASON THAT THE APPELLANT HAD TO ADDUCE SOME ADDITI ONAL EVIDENCES THAT IS AFFIDAVIT OF THE SELLER THAT THEY INSISTED FOR CASH PAYMENT A ND CERTIFICATE BY THE SARPANCH OF VILLAGE GILL THAT THERE WAS NO BANK IN YEAR 2007-08 . SINCE THESE WERE THIRD PARTY EVIDENCE, THE DELAY WAS CAUSED IN GETTING THE SAME. 3. RELIANCE WAS PLACED ON (I) SAURAVJHUNJHUNWALA VS . CIT (2004) SCC ONLINE CAL 395; 2) TOWER CAPITAL & SECURITIES P VT. LTD. VS. ACIT, MUMBAI 2012 SCC ONLINE ITAT 13714; AND 3) CIT , MADRAS V. S. CHENNIAPPAMUDALIAR, MADURAI (1969) 1 SCC 591 IT WAS HIS PRAYER THAT THE EX-PARTE ORDER MAY BE RECALLED. 4. THE LD. SR.DR MS. CHANDER KANTA ON CONSIDERING O F THE MATERIAL AVAILABLE ON RECORD POSED NO OBJECTION TO THE RECAL L OF THE ORDER. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT THE ASSESSEE FILED AN APPEAL ON M.A. 246/CHD/2018 IN ITA 157/CHD/2012 PAGE 3 OF 5 21.03.2012 BEFORE THE ITAT WHEREIN THE CORRECTNESS OF THE ORDER DATED 10.01.2012 OF CIT(A)-II LUDHIANA PERTAINING T O 2008-09 WAS ASSAILED. A PERUSAL OF THE RECORD SHOWS THAT THE AP PEAL WAS DISMISSED BY THE CO-ORDINATE BENCH ON 15.05.2019 FO R NON- REPRESENTATION BY ORDER DATED 17.05.2019. SAID ORD ER WAS RECALLED VIDE ORDER DATED 28.11.2012 IN M.A. 26/CHD/2017 BY THE CO- ORDINATE BENCH WHERE ONE OF US ( LD. AM) WAS THE AU THOR. AS A RESULT OF THIS ORDER, THE APPEAL CAME UP FOR HEARING ON 9 TH JANUARY,2018. ON THE SAID DATE, ADJOURNMENT WAS SOUGHT BY THE LD. AR AND THE APPEAL STOOD ADJOURNED. ON THE NEXT DATE, ANOTHER ADJOURNMENT WAS MOVED ON THE FOLLOWING GROUND : SUB : APPLICATION FOR ADJOURNMENT OF PROCEEDINGS HON'BLE BENCH, KINDLY REFER TO THE ABOVE APPEAL FIXED BY THE HON'B LE BENCH FOR 06 TH FEBRUARY, 2018.THE COUNSEL OF ASSESSEE SH. PANKAJ BHALLA WHO WAS TO CONDUCT THIS APPEAL IS BUSY DUE TO WEDDING OF A VERY CLOSE FRIEND (COPY OF DOCU MENTARY EVIDENCE ANNEXED HEREWITH). FURTHER THE DETAILS & INFORMATION AS REQUIRED ARE B EING COMPILED WHICH SHALL TAKE SOME MORE TIME. IN VIEW OF THE ABOVE, IT IS MOST RESPECTFULLY PRAYE D THAT ADJOURNMENT MAY KINDLY BE GRANTED. THANKING YOU, YOURS FAITHFULLY, DATED : 06.02.2017 FOR V.V.BHALLA & CO. CHARTERED ACCOUNTANTS SD/- ( PANKAJ BHALLA) COUNSEL 5.1 ON WHICH GROUND THE APPEAL WAS REJECTED HOLDING AS UNDER : 2. AT THE TIME OF HEARING AN ADJOURNMENT APPLICATION W AS PLACED ON BEHALF OF THE ASSESSEE MOVED BY THE LD. AR. IN SUPPORT OF THE APPLICATION A PERSON MR SIDDHANT WAS PRESENT. HE WAS REQUIRED TO ADDRESS WH Y TIME WAS REQUIRED. THE PERSON PRESENT STATED THAT HE WAS AN EMPLOYEE AS SU CH UNAWARE ABOUT THE CONTENTS OF THE APPLICATION MOVED. THE APPLICATION HAS BEEN MOVED STATING THAT THE COUNSEL WAS NOT AVAILABLE. THIS FACT WAS MADE KNOWN TO THE PERSON PRESENT WHO REPORTED THAT HE WAS UNAWARE. THE RECORD SHOWS THAT IN THE FACTS OF THE PRESENT CASE THE ASSESSEE HAS TREATED THE SEEKING OF ADJOURNMENT AND FIXING OF APPEAL AS A VERY CASUAL EXERCISE WHICH SUGGESTS THAT THE ASSESSEE IN FACT MAY NOT BE SERIOUS IN PURSUING THE APPEAL FILED. THE SAID CONCLUSION IS B ORNE OUT FROM THE FACTS ON M.A. 246/CHD/2018 IN ITA 157/CHD/2012 PAGE 4 OF 5 RECORD WHICH SHOWS THAT THE APPEAL OF THE ASSESSEE FILED ON 21/03/2012, AFTER GIVING OPPORTUNITY WAS ULTIMATELY DISMISSED BY THE COORDINATE BENCH VIDE ORDER DATED 17/05/2012 ON THE GROUNDS OF NON-PROSECUTION. AGGRIEVED BY THIS ORDER THE ASSESSEE FILED A MISCELLANEOUS APPLICATION PRAYING FOR A RECALL OF THE SAID ORDER. THE COORDINATE BENCH VIDE ORDER DATED 28/11/2017 IN MA 26/CHD /2017 WAS PLEASED TO RECALL THE ORDER AND DIRECT THE FIXATION OF THE APPEAL FOR HEARING ON MERITS ON 09/01/2018. ON THE SAID DATE DESPITE THE APPEAL HAVING BEEN FILED ON 21/03/2012 THE LD. AR WAS UNABLE TO ARGUE THE APPEA L AND MOVED AN ADJOURNMENT APPLICATION STATING THAT DOCUMENTS ARE REQUIRED TO BE COMPILED. IN SUPPORT OF THE SAID APPLICATION PROXY COUNSEL MR S YADAV, CA WAS PRESENT. ACCEPTING THE REQUEST IN GOOD FAITH, TIME WAS GRANTED AND THE APP EAL WAS LISTED FOR HEARING ON 6 TH OF FEBRUARY, 2018. AS A RESULT OF THIS ORDER, THE A PPEAL WAS ADJOURNED TO 06.02.2018. THE DATE WAS PRONOUNCED IN THE OPEN CO URT. THE APPEAL CAME UP FOR HEARING ON THE SAID DATE I.E. 06.02.2018. ON THE SA ID DATE ALSO AN ADJOURNMENT APPLICATION WAS MOVED ON BEHALF OF THE ASSESSEE. AS NOTED, SOME OFFICE EMPLOYEE WAS PRESENT IN SUPPORT OF THE SAME WHO WAS UNAWARE ABOUT THE CONTENTS OF THE APPLICATION. FURTHER NO PAPER BOOK/DOCUMENTS ETC. TILL DATE HAVE BEEN FILED EITHER ON THE SAID DATE OR PRIOR TO THE SAID DATE O N BEHALF OF THE ASSESSEE . IT IS FURTHER EVIDENT FROM THE RECORD THAT ON EACH OF THE DATES, THE COUNSEL HAS NOT CARED TO BE PRESENT AND HAS EITHER SENT PROXY COUNS EL OR AN EMPLOYEE. IN THE CIRCUMSTANCES IT CAN BE SAFELY PRESUMED THAT THE AS SESSEE MAY NOT BE SERIOUS IN PURSUING THE APPEAL FILED AS NO ATTEMPTS DESPITE HA VING FILED THE APPEAL IN 2012 HAVE BEEN MADE TO PLACE ANY DOCUMENTS/PAPER-BOOK ON RECORD IN SUPPORT OF THE GROUNDS . IN THE CIRCUMSTANCES, GRANT OF ANY FURTHER TIME W OULD BE A WASTE OF GOVERNMENT TIME AND MACHINERY. IN VIEW OF THE SAME , THE ADJOURNMENT REQUEST OF THE ASSESSEE IS DISMISSED AND THE APPEAL OF THE ASS ESSEE IS DISMISSED IN LIMINE RELYING UPON ORDER OF THE ITAT DELHI BENCHES IN THE CASE OF CIT VS MULTIPLAN INDIA PVT. LTD. (1991) 38 ITD 320 AND THE DECISION OF HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF LATE SHRI TUKOJI RAO HOLK AR VS WEALTH TAX COMMISSIONER 223 ITR 480 (MP) ETC. (EMPHASIS SUPPLIED) 5.2. TAKING DUE NOTE OF THE FACT THAT THE HEARING I N THE PRESENT APPEAL HAS BEEN IMPEDED BY THE ASSESSEE ALL ALONG A ND BEING CONSCIOUS OF THE FACT THAT THERE ARE NO POWERS OR M ACHINERY WITH THE ITAT TO ENFORCE EITHER THE PRESENCE OF THE APPELLAN T AFTER HAVING FILED THE APPEAL OR INSIST THAT REPRESENTATION BE MADE. T HE ONLY WAY TO ENSURE REPRESENTATION AND WEED OUT NON SERIOUS APPE LLANTS IS BY WAY OF DISMISSAL OF APPEAL IN LIMINE ON THE GROUNDS OF NON-REPRESENTATION WHERE ABUSE OF THE REQUEST FOR TIME IS NOTICED. CON SIDERING THE APPLICATION AND ESPECIALLY THE UNDERTAKING GIVEN B Y THE ASSESSEE ON M.A. 246/CHD/2018 IN ITA 157/CHD/2012 PAGE 5 OF 5 AN AFFIDAVIT ADDRESSED IN PARA 5 WHICH HAS BEEN EXT RACTED IN THE EARLIER PART OF THIS ORDER, WE ACCEPTING THE EXPLA NATION AS BONAFIDE AND TRUE, RECALL THE IMPUGNED ORDER DATED 27.07.201 8 IN THE INTERESTS OF JUSTICE THUS, EXERCISING THE POWERS AS VESTED IN US BY PROVISO TO RULE 24 OF THE ITAT RULES 1963. SUPPORT IS DRAWN FR OM THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS ANSAL HOUSING CONSTRUCTION LTD. 274 ITR 131 (DEL). 6. REGISTRY, ACCORDINGLY, IS DIRECTED TO FIX THE AP PEAL FOR HEARING ON MERITS ON 18.09.2019 A DATE WHICH WAS STATED TO BE CONVENIENT TO THE COUNSEL . THE DATE WAS ANNOUNCED IN THE PRESENCE OF THE PARTI ES AT THE TIME OF HEARING ITSELF. ACCORDINGLY, FOR THE SA ID DATE, NO SPECIFIC NOTICE SHALL BE ISSUED TO THE PARTIES. SAID ORDER W AS PRONOUNCED AT THE TIME OF HEARING ITSELF. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07.08.2019. SD/- SD/- ( . %.. . & ) ( ! ) (DR. B.R.R. KUMAR) (DIVA SINGH) '( #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER