M/s Modern Rice & Genral Mills, Bathinda V. The Income-tax Officer, Bathinda

MA 28/ASR/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3964 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 28-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. T.S.KAPOOR, ACCOUNTANT MEMBER M. A. NO.28 (ASR)/2015 (ARISING OUT OF ITA NO. 313(ASR)/2013) ASSESSMENT YEAR: 2003-04 M/S. MODERN RICE & GENERAL MILLS, # 4304, KIKAR BAZAR, BATHINDA. PAN: VS. INCOME TAX OFFICER, WARD-II (I), BATHINDA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. VINEET KRISHAN (ADV.) RESPONDENT BY: SH. TARSEM LAL (DR) DATE OF HEARING: 04.03.2016 DATE OF PRONOUNCEM ENT:16.03.2016 ORDER PER T. S. KAPOOR (AM): THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE AGAINST THE ORDER OF TRIBUNAL DATED 30 TH JANUARY, 2014, IN ITA NO. 313(ASR)/2013 FOR ASST. YEAR 2003-04. 2. AT THE OUTSET, THE LEARNED AR SUBMITTED THAT HON BLE TRIBUNAL HAS PASSED THE ORDER IN ITA NO.313(ASR)/2013 EX-PARTE Q UA ASSESSEE. EXPLAINING THE REASONS FOR NON APPEARANCE ON THE DATE OF HEARI NG THE LEARNED AR SUBMITTED THAT HE WAS APPOINTED AS COUNSEL TO ARGUE THE CASE AND BEFORE DATE OF HEARING ON 21.01.2014 HE HAD MOVED AN ADJOURNMEN T APPLICATION VIDE SPEED 2. M.A. NO 28(ASR)/2015 (ARISING OUT O F ITA NO.313(ASR)/2013) ASST. YEAR. 200 3-04 POST DATED 17.1.2014 AND THE SAME WAS RECEIVED BY H ONBLE ITAT, AMRITSAR. THE ADJOURNMENT LETTER WAS ALSO ACCOMPANIED BY POWE R OF ATTORNEY AS HE WAS RECENTLY ENGAGED AND THE DATE OF 21.01/2014 HAPPENE D TO BE HIS FIRST HEARING . HE FURTHER SUBMITTED THAT HIS OFFICE HAD PERSONALLY CONFIRMED FROM THE OFFICE OF TRIBUNAL REGARDING RECEIPT OF ADJOURNMENT APPLICATI ON. HE SUBMITTED THAT SOMEHOW THE ADJOURNMENT LETTER SKIPPED THE NOTICE O F THE BENCH AND THE HONBLE TRIBUNAL PASSED THE ORDER EX-PARTE . THE LEARNED AR IN THIS RESPECT SUBMITTED THAT HE HAS FILED DULY SWORN IN AFFIDAVIT TO CONFIRM THE ABOVE FACTS. THEREFORE, RELYING UPON PROVISO TO RULE 25 OF ITAT RULES, THE LEARNED AR PRAYED THAT THE SAID ORDER MAY BE RECALLED AND ASSESSEE BE PROVIDE OPPORTUNITY OF BEING HEARD. 3. THE LEARNED DR, ON THE OTHER HAND, OPPOSED THE M ISCELLANEOUS APPLICATION. 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE DEPARTMENT HAD F ILED THE APPEAL IN ITA NO.313 ON 30.5.2013, THEREAFTER, THE APPEAL WAS ADJ OURNED ON VARIOUS DATES AND APPEAL CONTINUED TO BE ADJOURNED ON ACCOUNT OF NON FUNCTIONING OF BENCH. HOWEVER, FINALLY ON 3.12.2013 THE BENCH FUNCTIONED AND THE MATTER WAS ADJOURNED TO 21.1.2014 ON THE REQUEST OF REVENUE AN D FINALLY ON 21.1.2014 THE APPEAL WAS HEARD EX-PARTE QUA ASSESSEE. FROM THE AB OVE FACTS IT IS APPARENT THAT BENCH DID FUNCTION ONLY ON 3.12.2013 AND THEN ONLY ON 21.1.2014 WHEN THE APPEAL WAS DISPOSED OFF, THEREFORE, IT IS A FIT ORDER TO BE RECALLED AS ASSESSEE 3. M.A. NO 28(ASR)/2015 (ARISING OUT O F ITA NO.313(ASR)/2013) ASST. YEAR. 200 3-04 WAS NOT PROVIDED SUFFICIENT OPPORTUNITY AND MOREOVE R THE LEARNED COUNSEL OF THE ASSESSEE HAD FILED ADJOURNMENT APPLICATION DATE D 17.1.2014 AND WHICH WAS RECEIVED BY THE OFFICE OF TRIBUNAL ON 20.01.20 14 AND THE SAID ADJOURNMENT LETTER IS FOUND PLACED IN THE RECORD AS DISMISSED. 5. THE RULE 25 R.W PROVISO OF ITAT RULES READS AS U NDER: 25. WHERE, ON THE DAY FIXED FOR HEARING OR ANY OTH ER DAY TO WHICH THE HEARING MAY BE ADJOURNED, THE APPELLANT APPEARS AND THE RES PONDENT DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORIZED REPRESENTATIVE WHEN THE APPEAL IS CALLED ON FOR HEARING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE APPELLANT. [PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVIDED ABOVE AND THE[RESPONDENT] APPEARS AFTERWARDS AND SATISFIES TH E TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NO-APPEARANCE WHEN THE APP EAL WAS CALLED ON FOR HEARING THE TRIBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE EX PARTE ORDER AND RESTORE THE APPEAL] FROM THE FACTS AND CIRCUMSTANCES OF THE CASE IT IS OBSERVED THAT ASSESSEE HAS BEEN DENIED OPPORTUNITY OF BEING HEARD AND THEREFOR E, RULES OF NATURAL JUSTICE HAS BEEN VIOLATED. MOREOVER NON APPEARANCE OF LEARN ED COUNSEL ON THE DATE OF HEARING IS JUSTIFIED AS IT WAS THE FIRST EFFECTIVE DATE OF HEARING AND HAVING FILED ADJOURNMENT LETTER IN ADVANCE HE WAS UNDER A BONAFI DE BELIEF THAT ADJOURNMENT WILL BE GRANTED. THEREFORE, THE REQUES T OF THE ASSESSEE IS FOUND IN ACCORDANCE WITH THE LAW AND THEREFORE, THE ORDER DA TED 30.01.2014 PASSED IN ITA NO.313(ASR)/2013 FOR ASST. YEAR 2003-04 IS RECA LLED AND APPEAL IS LISTED FOR 4. M.A. NO 28(ASR)/2015 (ARISING OUT O F ITA NO.313(ASR)/2013) ASST. YEAR. 200 3-04 HEARING ON MERITS ON 4.5.2016. SINCE THE DATE OF HE ARING WAS ANNOUNCED IN THE OPEN COURT, NO SEPARATE NOTICE WILL BE ISSUED FOR H EARING OF THE CASE. 5. IN VIEW OF THE ABOVE, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ORALLY IN THE OPEN COURT ON TH E CONCLUSION OF HEARING IS PRONOUNCED IN WRITING ON 16 TH MARCH, 2016. SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTA NT MEMBER DATED: 16.03.2016. /PK/ PS. COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: 2. THE 3. THE CIT, 4. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR .