M/s. Ashim Kumar Chatterjee, Kolkata V. DCIT, Circle-22, Kolkata, Kolkata

MA 26/KOL/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4970 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 22-08-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH: KOLKATA [Before Shri Rajesh Kumar, Accountant Member & Shri Sonjoy Sarma, Judicial Member] M.A. No. 26/Kol/2021 (Arising out of I.T.A. No. 752/Kol/2017) Assessment Year : 2012-13 Ashim Chatterjee (PAN: ABYPC 5107 D) Vs. DCIT,Circle-22, Kolkata Appellant Respondent Date of Hearing 11.03.2022 Date of Pronouncement 16.03.2022 For the Appellant Shri Siddharth Jhajharia, FCA For the Respondent Smt. Ranu Biswas, Addl. CITDR ORDER Per Shri Rajesh Kumar, AM: This miscellaneous application is has been filed by the assessee requesting the bench to recall the order of Tribunal passed in ITA No. 752/Kol/2017 for AY 2012- 13 dated 27.06.2018 which was an ex-parte order. 2. The Ld. Counsel for the assessee submitted before the bench that the order has been passed by the Tribunal as stated above on the back of the assessee without hearing the assessee on merit thereby causing miscarriage of principle of natural justice and fair play. The Ld. Counsel of the assessee also drew the attention of the bench to the communication addressed to the assessee from the Registry of the Tribunal pointing out that there is a delay of 965 days in filing the appeal and submitted that there is no delay in filing the miscellaneous application as the same has been filed within time as prescribed u/s 254(2) of the Income Tax Act, 1961 (hereinafter referred to as the Act). The Ld. Counsel for the assessee submitted that the order of Tribunal against which the present miscellaneous application has been filed on 27.06.2018 was not served on the assessee and the assessee was not knowing about the said order having been passed by the Tribunal. The Ld. Counsel submitted that the 2 MA No. 26/Kol/2021 (Arising out of ITA No. 752/Kol/2017 AY: 2012-13 Ashim Chatterjee assessee came to know about the appeal having been dismissed by the Tribunal only when the tax demand demand in the instant year was adjusted against the refund of tax due to the assessee in other assessment year. Thereupon ,the assessee immediately applied for the certified copy of the order which was supplied and provided to the assessee on 17.08.2021. Thereafter the assessee filed miscellaneous application within the week on 27.08.2021 requesting the tribunal to recall the ex-parte order. The Ld. A.R prayed before the bench that since the appeal of the assessee has been dismissed for non-prosecution without considering the merits of the case and therefore ends of justice would be met if the appeal of the assessee revived by recalling the order so that it could be heard on merit. The Ld. A.R. finally prayed that the miscellaneous application of the assessee may kindly be allowed in view the stated facts. The Ld. D.R while fairly agreeing to the contention of the Ld. A.R. that certified copy was given to the assessee on 17.08.2021 however opposed the admission of miscellaneous application by arguing before the bench that the assessee should have known the fact of this appeal being decided and dismissed by the Tribunal. 3. After hearing rival submissions and perusing the material on record including the certified copy of the order given to the assessee on 17.08.2021, we observe that the undisputedly, the tribunal has dismissed the appeal for non-prosecution vide order dated 27.06.2018 which was not served to the assessee The assessee came to know about the ex parte order only when income tax demand was adjusted against refund due to the assessee in other assessment years. The assessee applied for certified copy forthwith and filed miscellaneous application for recalling the order of the Tribunal. Considering the facts of the case and reasons given for filing the miscellaneous application ends of justice would be met if the order of the Tribunal which is passed ex-parte is recalled so that the assessee is heard on merit and justice is done in accordance with the provision of the Act. The case of the assessee finds force from the decision of Hon’ble Gujrat High Court in the case of Dolphin Metal India Ltd. vs. ITO [2021] 431 ITR 666(Guj) wherein it was held that the Tribunal is duty bound to decide the case on merit and miscellaneous application could not be dismissed on the ground 3 MA No. 26/Kol/2021 (Arising out of ITA No. 752/Kol/2017 AY: 2012-13 Ashim Chatterjee of being barred by limitation u/s 254 of the Act as in the case of ex-parte orders the provisions of Rule 19,20, & 21 of the Income Tax Appellate Tribunal Rules, 1963 will come on to play. 4. Considering the facts of the case and reasons cited by the assessee we are inclined to recall the order and direct the Registry to post the same before the regular bench on 20.04.2022. 5. In the result, the miscellaneous application of the assessee is allowed. Order is pronounced in the open court on 16 th March, 2022 Sd/- Sd/- (Sonjoy Sarma) (Rajesh Kumar) Judicial Member Accountant Member Dated: 16 th March, 2022 SB, Sr. PS Copy of the order forwarded to: 1. Appellant- M/s Ashim Kumar Chatterjee, 169B, Raja Dinendra Street, Manicktala, Kolkata-700004. 2. Respondent – DCIT, Circle-22,Kolkata 3. The CIT(A)-National Faceless Appeal Centre (NFAC) 4. Pr. CIT- , Kolkata 5. DR, Kolkata Benches, Kolkata (sent through e-mail) True Copy By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata