Biyani Impex Pvt. Ltd., Surat V. The Income tax Officer, Ward-1(1), Surat

MA 268/AHD/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7438 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 23-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV

Judgement Text

, , , . , ! ! ! ! ' ' ' ' IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : AHMEDABAD BEFORE SHRI BHAVNESH SAINI, J.M. & HONBLE SHRI A .MOHAN ALANKAMONY, A.M.) ## ## ## ## (M.A.) NO.268/AHD/2010 : ASSESSMENT YEAR 2003-04 (ARISING OUT OF ITA NO.1615/AHD./2005) M/S. BIYANI IMPEX PVT. LTD., SURAT .. .. ( / APPLICANT) -VS- PAN: AABCB 4332L ITO, WARD-1(1), SURAT ( $%&' / RESPONDENT) ( ) /APPLICANT BY : SHRI HARDIK VORA, A.R. $%&' ( ) / RESPONDENT BY : SHRI B.L.YADAV, SR.D.R. *+ ( ,-! / DATE OF HEARING : 13/01/2012 . / ( ,-! / DATE OF PRONOUNCEMENT : 13/01/2012 / ORDER PER SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICAT ION SEEKING RECALLING OF THE ORDER PASSED BY THE TRIBUNAL DATED 30.10.2009 IN ITA NO.1615/AHD/2005 FOR THE ASSESSMENT YEAR 2003-04. 2. THE ASSESSEE, VIDE HIS M.A. DATED 16.12.2010, HA S STATED AS UNDER: 1. THIS MISCELLANEOUS APPLICATION U/S 254(2) ARISE S OUT OF ORDER PASSED ON 30.10.2009 BY HONOURABLE 'B' BENCH IN CAS E OF APPEAL FILED BY ASSESSEE NO. 1615/AHD/05. 2 M.A.NO. 268-AHD-2011 2. THE HONOURABLE TRIBUNAL PASSED THE EX-PARTY ORD ER ON THE GROUND THAT NOTICE OF HEARING WAS SENT TO THE ASSESSEE AT THE ADDRESS MENTIONED IN THE MEMO OF APPEAL IN FORM-36 BUT IT W AS RETURNED UN- SERVED WITH THE POSTAL REMARKS 'LEFT' AND ASSESSEE HAS NOT INTIMATED THE CHANGE IN ADDRESS. THE HONOURABLE TRIBUNAL THER EFORE HELD THAT ASSESSEE WAS NOT INTERESTED IN PURSUING THE APPEAL. 3. DUE TO CHANGE IN ADDRESS, ASSESSEE DID NOT RECE IVE ANY NOTICE OF HEARING. IT IS ALSO PERTINENT TO MENTION HERE THAT ON EARLIER OCCASION WHEN THE HEARING OF APPEAL WAS FIXED ON 03.09.2008 AT SURAT CAMP, THE ASSESSEE'S COUNSEL APPEARED TO REPRESENT THE CA SE BUT, HOWEVER, THE MATTER WAS ADJOURNED SINE DINE. IT IS ALSO PERT INENT TO MENTION THAT AT THE TIME OF HEARING, PAPER BOOK WAS FILED. IT MA Y THEREFORE BE APPRECIATED THAT ASSESSEE IS VERY MUCH INTERESTED I N PROSECUTING THE MATTER & IT WAS ONLY DUE TO LACK OF KNOWLEDGE ON PA RT OF ASSESSEE THAT NEW ADDRESS AT WHICH NOTICE COULD BE SERVED WA S NOT INTIMATED TO THE REGISTRY. THE NEW ADDRESS OF THE ASSESSEE IS AS UNDER: 5101-B BLOCK, RAGHUKUL MARKET, RING ROAD, SURAT PIN: 395002. 4. THE ASSESSEE THEREFORE REQUESTS HONOURABLE MEM BERS TO KINDLY RECALL THE ABOVE EX-PARTY ORDER & ONE MORE CHANCE O F REPRESENTATION MAY PLEASE BE PROVIDED IN THE INTEREST OF JUSTICE. IT IS SUBMITTED THAT GRAVE INJUSTICE WOULD BE CAUSED TO THE ASSESSEE IF THE ABOVE ORDER IS NOT RECALLED. THE ASSESSEE PRAYS FOR THE ACT OF KIN DNESS FOR WHICH THE ASSESSEE SHALL ALWAYS REMAIN GRATEFUL. 5. THE NOTICE OF HEARING OF MISCELLANEOUS APPLICAT ION BE SENT TO ADDRESS AS STATED ABOVE. 3. AT THE TIME OF HEARING, THE LD. A.R. SUBMITTED T HAT ON THE BASIS OF ABOVE SUBMISSIONS OF THE ASSESSEE, THE ORDER OF THE TRIBUNAL DATED 30.10.2009 MAY KINDLY BE RECALLED. ON THE OTHER HAN D, THE LD. D.R. DID NOT CONTROVERT THE SUBMISSIONS OF THE LD. A.R. 3 M.A.NO. 268-AHD-2011 4. RIVAL SUBMISSIONS WERE CONSIDERED. IT IS PERTINE NT TO NOTE THAT THE TRIBUNAL DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE FOR NON-PROSECUTION FOLLOWING THE DECISION OF THE ITAT IN THE CASE OF M ULTIPLAN INDIA LTD. ( SUPRA ). KEEPING IN VIEW OF THE TOTALITY OF THE FACTS, WE AR E OF THE VIEW THAT IT WILL MEET THE ENDS OF JUSTICE, IF THIS ORDER IS RECALLED . WE ORDER ACCORDINGLY AND DIRECT THE REGISTRY TO FIX THE APPEAL OF THE ASSESS EE, AFTER SERVING NOTICE TO BOTH THE SIDES. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. 0 ( . / 12 13 / 01 /201 2 3 ( 4+ 5 SD/- SD/- (BHAVNESH SAINI) (A.MOHAN ALANKAMONY) JUDICIAL MEMBER ACCOUNTANT M EMBER DATED : 13/01/2012 ( (( ( $, $,$, $,# # # # 6#/,2 6#/,2 6#/,2 6#/,2- -- - 1. &' 2. $%&' 3. , *< 4. *<- - 5. #4 $,, , 5 6. 4A B0 , C/ E , 5 TALUKDAR/ SR. P.S.