M/s Apex Builders, Ludhiana V. ITO, W-2(1), Ludhiana

MA 27/CHANDI/2020

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 4893 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 year(s) 5 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-11-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 26-10-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 08-06-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VINMAR GUPTA
• Keywords: Corroborative evidences

Judgement Text

आयकर अपीलीय अिधकरण,च᭛डीगढ़ ᭠यायपीठ “एस.एम.सी” , च᭛डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCHES, “SMC” CHANDIGARH (VIRTUAL COURT) ᮰ी िवᮓम ᳲसह यादव, लेखा सद᭭य BEFORE: SHRI. VIKRAM SINGH YADAV, AM Miscellaneous Application No. 27/Chd/2020 In आयकर अपील सं./ ITA NO. 1284/Chd/2018 िनधाᭅरण वषᭅ / Assessment Year : 2012-13 M/s Apex Builders 620, Ambey Builders, Lakkar Bazar Ludhiana, Punjab बनाम The ITO W-2(1), Ludhiana Punjab ̾थायी लेखा सं./PAN NO: AAOFA5873B अपीलाथᱮ/Appellant ᮧ᭜यथᱮ/Respondent िनधाᭅᳯरती कᳱ ओर से/Assessee by : Shri Vinmar Gupta, C.A राज᭭व कᳱ ओर से/ Revenue by : Smt. Amanpreet Kaur, Sr. DR सुनवाई कᳱ तारीख/Date of Hearing : 27/10/2023 उदघोषणा कᳱ तारीख/Date of Pronouncement : 30/10/2023 आदेश/Order PER VIKRAM SINGH YADAV, A.M. : The present miscellaneous application has been filed by the Assessee against the order passed by the Coordinate Bench dt. 11/09/2019 in ITA No. 1284/Chd/2018 for Assessment Year 2012-13. 2. In the Miscellaneous Application, it has been submitted as under: Sub: Miscellaneous Application to recall the Ex parte Order ITA 1284/CHD/2018 dated 11- 09-2019 in the case of M/s. Apex Builders. In the subject case, exparte order dismissing the appeal has been passed due to non presence of the assessee and not substantiating the reasons for condonation of delay. The Hon'ble Bench, however permitted to submit condonation application with supporting evidences. In this regard it is submitted as under: 1. That at the time of order passed by CITA i.e. 30-01-2018, there were 4 partners in the firm M/s. Apex Builders. 2. That dispute arose amongst the partners regarding the handling of the business. 3. That deed for reconstitution was made on 1st April 2018 but the outgoing partners Mr. Om Prakash Singla and Suman Lata refused to sign the deed till the entire payment is made. 4. That Mr. Om Parkash Singla and Suman Lata signed the deed of reconstitution on 03- 06-2019 on making their final payment. 2 5. The dispute resulted in delay of 186 days in filing of appeal before Hon'ble Bench of ITAT. 6. That earlier notices for hearing of the case ITA 1284/CHD/2018 dated dated 03-04- 2019, 09-05-2019 and 24-06-2019 have been duly served on the assessee but no hearing took place on the stipulated dates mentioned in the notices. 7. That the assessee and Counsel could not attend the proceedings stipulated for 02-09- 2019 because no notice was received for the above date. 8. That the assessee is submitting here with deed of reconstitution, outgoing partners' account statements and bank statement of the firm as supporting evidence. 9. That the assessee undertakes to rectify the defects in the appeal. 10.Further the copy of grounds of appeal filed before CIT A is enclosed for rectification of defect 11.Certified copy of original order of CIT A is being also enclosed for rectification of defect. 12.That the Hon'ble Bench is requested to condone the delay and hear the case on merits. 13. That the assessee has received the order of Hon'ble Bench dated 11-09- 2019 of ITAT on 13-12-2019. 14.Further notices may be served on the assessee at following address: 1598, Bazar Khazanchian, Near Gurmandi, Ludhiana.” 3. The Ld AR is heard who has referred to the aforesaid misc. application and has prayed for recall of the order in the interest of justice. 4. Ld. DR is heard who has relied on the order passed by the Coordinate Bench. It was submitted that the appeal of the assessee was dismissed not just for non- prosecution but on account of the fact that delay in filing the appeal was not explained by the assessee. 5. After hearing both the parties and considering the material available on the record, we find that the appeal filed by the assessee has been dismissed by the Coordinate Bench on account of non-prosecution on the scheduled date of hearing i,e, 2.09.2019 as well as on account of non-removal of certain defects as pointed out by the Registry as well as on account of delay in filing the appeal. The Coordinate Bench has taken note of the fact that the notice sent by the Registry at the only available address has come back unserved with the remark “left” and therefore, the deficiencies 3 cannot be communicated to the assessee. This thus supports the submission of the assessee made before us regarding non-receipt of the notice scheduling the date of hearing. We therefore find that as far as matter relating to non-prosecution on part of the assessee is concerned, the same is on account of non-receipt of the notice resulting in passing of an ex-parte order at the admission stage itself. Therefore, in order to provide an opportunity to the assessee and in interest of substantial justice and fair play, we hereby recall the order so passed by the Coordinate Bench. We make it clear that the assessee would still be required to explain the reasons which have led to the delay in filing of the appeal as well as whether the defects in filing the appeal have been removed or not at the next date of hearing which is scheduled for 04/12/2023. As announced in the Open Court, separate notice is dispensed with. 6. In the result, Misc. Application filed by the Assessee is disposed off in light of aforesaid directions. (Order pronounced in the open Court on 30/10/2023 ) Sd/- िवᮓम ᳲसह यादव (VIKRAM SINGH YADAV) लेखा सद᭭य / ACCOUNTANT MEMBER AG Date: 30/10/2023 आदेश कᳱ ᮧितिलिप अᮕेिषत/ Copy of the order forwarded to : 1. अपीलाथᱮ/ The Appellant 2. ᮧ᭜यथᱮ/ The Respondent 3. आयकर आयुᲦ/ CIT 4. आयकर आयुᲦ (अपील)/ The CIT(A) 5. िवभागीय ᮧितिनिध, आयकर अपीलीय आिधकरण, च᭛डीगढ़/ DR, ITAT, CHANDIGARH 6. गाडŊ फाईल/ Guard File