Ashok shantilal Changede, Ahmednagar V. Income-tax Officer, Ahmenagar

MA 28/PUN/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3811 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 6 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 24-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VITTHAL BHOSALE
• Keywords: Principle of natural justice
• Section: 254(2); 48

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E (THROUGH VIRTUAL COURT) BEFORE SHRI INTURI RAMA RAO, AM AND SHRI S. S. VISWANETHRA RAVI, JM M.A. NO.28/PUN/2021 (ARISING OUT OF ITA NO.2237/PUN/2013) / ASSESSMENT YEAR : 2006-07 MR. ASHOK SHANTILAL CHANGEDE, DANA GALLI, BHINGAR, AHMEDNAGAR. PAN : ADOPC7201J. .. /APPLICANT / V/S. THE INCOME TAX OFFICER, WARD 1, AHMEDNAGAR. .. / RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI VITTHAL BHOSALE. / DATE OF HEARING : 04.06.2021 / DATE OF PRONOUNCEMENT : 07.06.2021 / ORDER PER INTURI RAMA RAO, AM: THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSE E SEEKING RECALL OF THE ORDER DATED 20.05.2016 PASSED BY THIS TRIBUN AL IN ITA NO.2237/PUN/2013 FOR THE ASSESSMENT YEAR 2006-07 STA TING THAT THE TRIBUNAL WAS NOT JUSTIFIED IN DISMISSING THE APPEAL FOR NON-PROSECUTIO N. 2 2. IT IS SUBMITTED THAT THE NOTICE OF HEARING POSTING TH E CASE FOR HEARING FOR 18.05.2016 WAS NOT SERVED UPON THE PETITIONER. FURTH ER IT IS SUBMITTED THAT THE FINDING OF THE TRIBUNAL THAT THE NOTIFIED DEFECTS IN THE APPEAL MEMO REMAINS UNCURED IS CONTRARY TO THE FACT THAT THE PETITIO NER HAD REMOVED ALL THE DEFECTS, THE SAME WAS FORWARDED BY THE REGISTERED P OST ON 29.10.2014. IT IS FURTHER SUBMITTED THAT THE PREMISE ON WHICH THE TRIBUN AL HAS DISMISSED THE APPEAL IS TOTALLY CONTRARY TO THE FACTS ON RECORD. I N THE ABOVE CIRCUMSTANCES, IT IS PRAYED FOR RECALLING OF THE APPEAL. 3. WHEN THE MATTER WAS CALLED ON, NONE APPEARED ON BEHA LF OF THE ASSESSEE DESPITE DUE SERVICE OF NOTICE. 4. WE HEARD THE LD. SR. DR AND PERUSED THE CONTENTS OF T HE PRESENT MISCELLANEOUS APPLICATION AND THE ORDERS PASSED BY THIS TR IBUNAL IN ITA NO.2237/PUN/2013 FOR ASSESSMENT YEAR 2006-07. ON PER USAL OF THE ORDER PASSED BY THE TRIBUNAL, IT IS CLEAR THAT THE APPEAL WAS DI SMISSED FOR NON- PROSECUTION AS WELL AS ON THE PREMISE THAT DEFECTS IN TH E APPEAL REMAINS UNCURED WITHOUT GOING INTO THE MERITS OF THE ISSUE, IN THE APPEAL. 5. THE APPROACH OF THE TRIBUNAL IS CONTRARY TO THE LAW LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. S. CHENNIAP PA MUDALIAR (1969) 74 ITR 41 (SC) WHEREIN THE HONBLE SUPREME COURT HELD TH AT THE TRIBUNAL IS BOUND TO GIVE THE DECISION ON MERITS AS QUESTIONS OF FACTS AND LAW AND NOT MERELY DISMISSING OF APPEAL ON THE GROUND THAT PARTY CO NCERNED HAD FAILED TO APPEAR CONSIDERING THE RULE 24 OF THE INCOME TAX APPELLAT E TRIBUNAL RULES, 1946. SUBSEQUENTLY, THE SAID PRINCIPLE WAS REITERATED BY THE HONBLE SUPREME COURT IN THE CASE OF BALAJI STEELS RE-ROLLING MILLS VS . COMMISSIONER 3 OF CENTRAL EXCISE AND CUSTOMS (2014) 29 GSTR 502 (SC), (2014 ) 16 SCC. THIS PRINCIPLE WAS ALSO FOLLOWED BY VARIOUS HONBLE HIGH COURT S IN THE FOLLOWING DECISIONS : BHARAT PETROLEUM CORPORATION LIMITED VS. ITAT (2013) 359 ITR 371 (BOM). CIT VS. HARNANDRAI SHRIKISHAN AKODIA 91966) 61 ITR 50 (MP) M.X. DE NORNHA AND SONS VS. CIT (1950) 18 ITR 928 (ALL) MANGAT RAM KUTHIALA VS. CIT (1960) 38 ITR 1 (PUNJAB) GANESH VS. CCE, (365 ELT 301 (MAD); K.T. UDESHI VS. CIT (1978) 114 ITR 542 (BOM) ANIL KUMAR AGRAHARI VS. CIT (2010) 323 ITR 260 (MP) RAJENDRA PRASAD BORAH VS. ITAT (2008) 174 TAXMAN 568/3 02 ITR 243 (GAUHATI.) TRIBHUWAN KUMAR VS. CIT (2007) 294 ITR 401 (RAJ) MAYUR SHEET GRAH (P) LTD. VS. CIT (2013) 38 TAXMANN.COM 229 KHUSHALCHAND B. DAGA VS. T.K. SURENDRAN, ITO (1972) 85 ITR 48 (BOM) N.S. MOHAN VS. ITAT 94 TAXMANN 92 (MADRAS) SMT. RITHASABAPATHY VS. DCIT 104 TAXMANN.COM 431 (MADRAS). 6. RECENTLY, THE HONBLE ORISSA HIGH COURT IN THE CASE OF RABINDRA KUMAR MOHANTY VS. REGISTRAR ITAT (ORISSA) REPORTED IN 432 ITR 158 AFTER REFERRING TO THE ABOVE PRECEDENTS HELD AS FOLLOWS : ARTICLE 265 OF THE CONSTITUTION MANDATES THAT NO TAX CAN BE CO LLECTED EXCEPT BY AUTHORITY OF LAW. APPELLATE PROCEEDINGS ARE ALSO LA WS IN STRICT SENSE OF THE TERM, WHICH ARE REQUIRED TO BE FOLLOWED BEFORE TAX CAN LE GALLY BE COLLECTED. SIMILARLY, THE PROVISIONS OF LAW ARE REQUIRED TO BE FOLLOWED E VEN IF THE TAX PAYER DOES NOT PARTICIPATE IN THE PROCEEDINGS. NO ASSESSING AUTHOR ITY CAN REFUSE TO ASSESS THE TAX FAIRLY AND LEGALLY, MERELY BECAUSE THE TAX PAYE R IS NOT PARTICIPATING IN THE PROCEEDING. HENCE, DISMISSAL OF APPEALS BY ITAT FOR NON- PERSECUTION IS WHOLLY ILLEGAL AND UNJUSTIFIED. 11. IF WE SEE THIS ISSUE THROUGH THE PRISM OF THE P RINCIPLES OF NATURAL JUSTICE, AN APPELLATE AUTHORITY IS REQUIRED TO AFFORD AN OPPORT UNITY TO BE HEARD TO THE APPELLANT. IT HAS BEEN HELD IN PLETHORA OF CASES TH AT 'RIGHT TO NATURAL JUSTICE' IS A 4 PERSONAL RIGHT, EITHER A PERSON CAN WAIVE IT OR A P ERSON MAY NOT AVAIL IT. MERELY BECAUSE A PERSON IS NOT AVAILING HIS RIGHT OF NATUR AL JUSTICE, IT CANNOT BE A GROUND OF REFUSAL TO PERFORM STATUTORY DUTY OF DECI DING APPEAL BY THE TRIBUNAL. 12. APPLYING THE PRINCIPLES LAID DOWN IN THE AFORES AID CASES TO THE FACTS OF THE PRESENT CASE, WE ARE OF THE CONSIDERED OPINION THAT THE TRIBUNAL COULD NOT HAVE DISMISSED THE APPEAL FILED BY THE APPELLANT FOR WAN T OF PROSECUTION AND IT OUGHT TO HAVE DECIDED THE APPEAL ON //8// MERITS EVEN IF THE APPELLANT OR ITS COUNSEL WAS NOT PRESENT WHEN THE APPEAL WAS TAKEN UP FOR HE ARING. 13. IN VIEW OF THE ABOVE ANALYSIS, THE RULES AND TH E PROVISIONS OF THE ACT WOULD PAVE WAY FOR THE TRIBUNAL TO RECONSIDER ITS DECISIO N. THE WRIT PETITION IS ALLOWED AND WE DIRECT THE TRIBUNAL TO RESTORE THE APPEAL AN D DECIDE THE APPEAL ON MERIT AFTER GIVING BOTH THE PARTIES AN OPPORTUNITY OF BEI NG HEARD. 7. THEREFORE, IN THE LIGHT OF THE LEGAL POSITION ENUNCIATED AB OVE, WE ARE OF THE CONSIDERED OPINION THAT THE ORDER PASSED BY THE TR IBUNAL IS NOT IN CONSONANCE WITH THE LAW LAID BY THE HONBLE SUPREME COUR T AND PLAIN PROVISIONS OF RULE 24 OF THE INCOME TAX APPELLATE TRIBUNAL RULES. EVEN THE JURISDICTIONAL HIGH COURT IN THE CASE OF BHARAT PETROLEUM C ORPORATION LIMITED REFERRED SUPRA HELD THAT THE DISMISSAL OF APPEAL BY THE TRIBUNAL ON DEFAULT OF NON-PROSECUTION IS A MISTAKE WHICH CAN BE RECTIFIE D U/S 254(2) OF THE ACT. ON THE SIMILAR LINES, THE DECISION OF THE HONBLE DE LHI HIGH COURT IN THE CASE OF CIT VS. ANSAL HOUSING & CONSTRUCTION LTD., 27 4 ITR 131, THE DECISION OF THE HONBLE KERALA HIGH COURT IN THE CASE OF M . S. JOSEPH MICHAEL & BROS. VS. ITAT, 199 ITR 466 AND CIT VS. ITAT, 120 ITR 231 (KER.). 8. THEREFORE, IT CONSTITUTES MISTAKE APPARENT FROM THE REC ORD, CAPABLE OF BEING RECTIFIED IN EXERCISE OF JURISDICTION VESTED WITH THE TR IBUNAL U/S 254(2) OF THE INCOME TAX ACT, 1961. ACCORDINGLY, WE RECALL THE ORDER PASSED BY THE TRIBUNAL IN ITA NO.2237/PUN/2013 FOR A.Y. 2006-07 DATED 2 0.05.2016 FOR FRESH DISPOSAL IN ACCORDANCE WITH THE LAW. THE REGISTRY IS DIRECTED TO LIST THE MATTER FOR HEARING IN DUE COURSE. ACCORDINGLY, THE MISCE LLANEOUS APPLICATION FILED BY THE ASSESSEE STANDS ALLOWED. 5 9. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE AS SESSEE IS ALLOWED. ORDER PRONOUNCED ON 07 TH DAY OF JUNE, 2021. SD/- SD/- (S. S. VISWANETHRA RAVI) (IN TURI RAMA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 07 TH JUNE, 2021. YAMINI/SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-IT/TP, PUNE. 4. THE CIT-IT/TP, PUNE. 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.