Devaraj Construction, Madurai V. ITO Non Corporate Ward 2(1), Madurai

MA 286/CHNY/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4115 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 6 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 13-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 254(2)

Judgement Text

आयकर अपील य अ धकरण, ‘ बी’ यायपीठ, चे नई IN THE INCOME TAX APPELLATE TRIBUNAL , ‘B’ BENCH, CHENNAI ी वी .द ु गा राव, या यक सद य एवं ी जी.मंज ु नाथ, लेखा सद य के सम$ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER Misc. Petition N o. 2 8 6 / C hn y/ 2 0 1 9 (In ITA No. 1 0 6 1/ C hn y/ 2 0 1 9) ( नधा रणवष / A s s es s m en t Ye ar : 20 08 - 0 9) M/s. Devaraj Constructions, Karisalpatti, Karumathur Post Usilampatti Taluk, Madurai Dist V s The Income Tax Officer, Non-Corporate Ward-2(1) Madurai. P AN: A A DF D 1 2 2 5 F (अपीलाथ /Appellant) ( यथ /Respondent) अपीलाथ क ओरसे/ Appellant by : Mr. T.Vasudevan, Advocate यथ क ओरसे/Respondent by : Mr. AR.V. Sreenivasan, Addl.CIT स ु नवाईक तार%ख/D a t e o f h e a r i n g : 27.05.2022 घोषणाक तार%ख /D a t e o f P r o n o u n c e m e n t : 31.05.2022 आदेश / O R D E R PER G. MANJUNATHA, AM: The assessee has filed present Miscellaneous Application u/s.254(2) of the Income Tax Act, 1961 and requested to recall order of the Tribunal in ITA No. 1061/Chny/2019 dated 19.07.2019 for reasons stated in the Misc. Application filed for the assessment year 2008-09. 2. The learned A.R for the assessee submitted that the Tribunal has disposed off appeal filed by the assessee ex-parte for non-appearance of his counsel or the assessee. The learned A.R further submitted that the assessee could not 2 Misc.Petition No.286/Chny/2019 represent his case due to circumstances beyond his control. Further, the Tribunal has disposed off appeal filed by the assessee without discussing issues involved in appeal filed by the assessee. Therefore, in the interest of justice, the order of the Tribunal may be recalled to advance substantial justice. 3. The learned DR, on the other hand, strongly opposed for the Misc. Application filed by the assessee and submitted that provisions of section 254(2) can be invoked only when the assessee has made out a case of mistake apparent on record. In this case, there is no mistake apparent on record and appeal filed by the assessee had been disposed off by the Tribunal for non-appearance and non-compliance with defect memo. Therefore, there is no merit in the Misc. Application filed by the assessee and hence, same may be rejected. 4. We have heard both the parties and considered materials available on record. The appeal filed by the assessee had been disposed off by the Tribunal ex-parte for non- appearance of the assessee or his counsel and non-compliance of defect memo. However, appeal has been disposed off without discussing issues involved on merits. It is well settled 3 Misc.Petition No.286/Chny/2019 principles of law by decisions of various Courts that before adjudicating any issue, both the sides should be heard. Further, appeals should be disposed off on the basis of materials available on record. In this case, the Tribunal has disposed off appeal filed by the assessee without affording reasonable opportunity of hearing and also not considering the issue involved in appeal on merits. Therefore, we are of the considered view that the order of the Tribunal in ITA No.1061/Chny/2019 dated 19.07.2019 needs to be recalled. Hence, we recall order passed by the Tribunal in ITA No.1061/Chny/2019 dated 19.07.2019 and direct the Registry to post appeal for hearing in due course. 5. In the result, Misc. application filed by the assessee is allowed. Order pronounced in the open court on 31 st May, 2022 Sd/- Sd/- ( वी.द ु गा राव) (जी.मंज ु नाथ) (V.Durga Rao) (G.Manjunatha) )या यक सद+य /Judicial Member लेखा सद+य / Accountant Member चे)नई/Chennai, .दनांक/Dated 31 st May, 2022 DS आदेश क त2ल3प अ4े3षत/Copy to: 1. Appellant 2. Respondent 3. आयकर आय ु 5त (अपील)/CIT(A) 4. आयकर आय ु 5त/CIT 5. 3वभागीय त न9ध/DR 6. गाड फाईल/GF.