Shri Prakash S. Shah, Mumbai V. The Dy. Commr. Income Tax, Cen. Circle-II, RAJKOT-GUJARAT

MA 25/RJT/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3377 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 4 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-07-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 28-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MEHUL PATEL
• Keywords: Reasonable cause

Judgement Text

आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरणआयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण, राजकोट 瀈यायपीठ 瀈यायपीठ瀈यायपीठ 瀈यायपीठ, , , , राजकोट IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT (Conducted Through Virtual Court) ] ] BEFORE SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER AND SMT.SUCHITRA KAMBLE, JUDICIAL MEMBER Misc.Application No.25/RJT/2019 IN ITA No.117/RJT/2015 Assessment Year :2009-10 Prakash Sevantibhai Shah B-406, Kingston High streets Nr.D.Mart, Hiranandani Gardens Powai, Mumbai 4000076. Vs. The DCIT, Cent.Cir.2 Rajkot. (Applicant) (Respondent) Assessee by : Shri Mehul Patel, ld.AR Revenue by : Shri B.D. Gupta, Ld.Sr.DR स ु नवाई क तार ख/Date of Hearing : 29/07/2022 घोषणा क तार ख /Date of Pronouncement: 29/07/2022 आदेश/O R D E R PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER By way of this Misc. Application, the assessee seeks recall of the ex parte order passed by the ITAT in ITA No.117/RJT/2015 for Asst.Year 2009-10 dated 6.9.2018. 2. The contents of the application filed before us read as under: “(1) That the appeal filed by the assessee above-named for the assessment year 2009-10 bearing ITA.No. 117/Rjt/2015 is ' decided by Hon'ble ITAT, Rajkot Bench ‘Rajkot', Ahmedabad vide order dated 06.09.2018, whereby the appeal of the assessee is dismissed ex- parte and also decided on merits against the assessee. MA No.25/RJT/2019 2 (2) It is respectfully submitted that on earlier date of hearing on 27/04/2018, the notice of hearing was duly received by the assessee and was also forwarded to the assessee's Authorised Representative *Shri Mehul K. Patel, Advocate at Ahmedabad. On the date of hearing, the AR took adjournment, and the next date given in the Court was 16/07/2018. However, our AR Shri Mehul K. Patel, Advocate could not remain present in the Court as he had to suddenly go to Vadodara due to personal difficulty, and he could not note this next date of hearing due to bonafide oversight and omission, and, in the circumstances, the above appeal was heard and dismissed. (3) It is humbly prayed that the applicant is very much interested in pursuing the matter and, in terms of Rule 24 of ITAT Rules and in the interest of justice, the applicant may kindly be given an opportunity of hearing,' and therefore it is humbly prayed' that the above order may kindly be recalled, and in the interest of justice the applicant be given an opportunity of hearing and the appeal be kindly decided on merits and oblige.” 3. Referring to the above application, the ld.counsel for the assessee contended that the above appeal had been dismissed ex parte, though after dealing with the merits of the case, and his solitary plea was that as per Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963, an ex parte order of the ITAT should be recalled for hearing, if the assessee is able to adduce sufficient evidence for non-prosecution before the ITAT. The ld.counsel for the assessee pleaded that he was unable to attend and remained unrepresented only on one hearing i.e. on 16.7.2018 and that too on account of the fact that, the said date given for hearing in open court could not be noted by the ld.counsel for the assesee Shri Mehul Patel who had suddenly to travel to Vadodara due to personal difficulty. That therefore he missed out on attending the hearing on the stated date. The ld.counsel for the assessee pleaded that the appeal be recalled for hearing as afresh as per Rule 24 of the Appellate Tribunal Rules. 4. The ld.DR objected to the above contentions of the assessee. MA No.25/RJT/2019 3 5. We heard both the parties. The assessee has invoked Rule 24 of the Appellate Tribunal Rules for recalling ex parte order passed in his case for hearing afresh. We have gone through the Rule 24 of the Appellate Tribunal Rules, which read as under: 24. Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorised representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent : Provided that where an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance, when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex parte order and restoring the appeal.] 6. As rightly pointed out by the ld.counsel for the assessee, an ex pare order passed by the ITAT is to be recalled and heard afresh in case an assessee is able to adduce sufficient and reasonable cause for non-attending and non-prosecution of its appeal. Before us, we have noted from the order of the ITAT the assessee was repeatedly seeking adjournment; on the date of hearing on 16.7.2018 none- come present on behalf of the assessee nor application was filed for seeking adjournment, therefore, the matter was proceeded to be heard ex parte by the ITAT. Before us, the ld.counsel for the assessee has pointed out that the reasons for not attending the hearing on the said date was because he failed to correctly note the date of hearing during the earlier hearing since had to rush to Vadodara for personal reasons. Noting the fact the assessee was represented by his Counsel on other occasions, though only for seeking adjournment, and it was only on one occasion that he remained un-represented, for which we find that reasonable cause has also been adduced, we are of the view that the appeal needs to be recalled for fresh hearing in accordance MA No.25/RJT/2019 4 with Rule 24 of the Appellate Tribunal Rules. The appeal is accordingly recalled to be fixed for hearing 23th August, 2022. 7. The order was pronounced in the Open Court in the presence of both the parties. No separate notice to be issued to the parties. 8. In the result, the Miscellaneous Application of the assessee is allowed. Order pronounced in the Court on 29 th July, 2022 at Ahmedabad. Sd/- Sd/- (SUCHITRA R. KAMBLE) JUDICIAL MEMBER (ANNAPURNA GUPTA) ACCOUNTANT MEMBER Ahmedabad, dated 29/07/2022 vk*