Shri Babusinh P. Thakor, Gandhinagar V. The Income Tax Officer, Ward-1, Gandhinagar

MA 293/AHD/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3268 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 19-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANKIT TULSANIA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) M.A. NO: 293/AHD/2018 (IN ITA NO. 107/AHD/2015) (ASSESSMENT YEAR: 2009-10) SHRI BABUSINH P. THAKOR PRAJAPATI VAS, VADODARA, GANDHINAGAR V/S THE ITO, WARD-1, GANDHINAGAR (APPELLANT) (RESPONDENT) PAN: AGWPT 2350E APPELLANT BY : SHRI ANKIT TULSANIA, A.R. RESPONDENT BY : SHRI S.K. DEV, SR. D.R. ( )/ ORDER DATE OF HEARING : 01 -02-201 9 DATE OF PRONOUNCEMENT : 11 -02-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. BY VIRTUE OF THIS MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE U/S 254(2) OF THE ACT, THE ASSESSEE INTENDS TO RECALL THE IMPUGNE D EX PARTE ORDER DT. 12-02- 2018 PASSED BY THIS TRIBUNAL. M.A. NO 293/ AHD/2018 . A.Y. 2009-10 2 2.THE LD. AR BEFORE US SUBMITTED AS UNDER: 1. THE PRESENT APPLICATION IS FILED BY THE APPELLANT ABOVE NAMED FOR SETTING ASIDE THE ORDER DATED 12/02/2018 PASSED BY THIS HON'BLE TRIBUNAL DISMISSIN G THE APPEAL OF THE APPELLANT EX- PARTE FOR NON-PROSECUTION, IN THE ABSENCE OF ADVOCATE OF THE APPELLANT. 2. THE ABOVE MENTIONED ORDER OF THE HON'BLE TRIBUNAL ST ATES THAT THE NOTICE OF THE HEARING ISSUED TO THE ASSESSEE BY THE REGISTERED POST WHICH WAS DU LY SERVED ON THE ASSESSEE, HOWEVER NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY APPLICAT ION FOR ADJOURNMENT HAS BEEN RECEIVED. THEREFORE, THE HON'BLE ITAT HELD THAT IT IS PRESUMED THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL AND THEREFORE THIS HON'BLE ITAT DISMISSED THE CAPTIONED APPEAL FOR WANT OF PROSECUTION. 3. THE APPLICANT SUBMITS THAT THE NOTICE OF HEARING WA S ISSUED AND THE SAME WAS SERVED TO THE ADDRESS OF THE APPLICANT. IT IS MOST RESPECTFULLY S UBMITTED THAT THE FAMILY MEMBER OF THE APPLICANT RECEIVED THE NOTICE OF HEARING, HOWEVER, DUE TO OVERSIGHT AND INADVERTENT MISTAKE, THE FAMILY MEMBER OF THE APPLICANT COULD NOT INTIMATE T HE SAME TO THE APPLICANT. THEREFORE, NO ONE COULD APPEAR BEFORE THE HON'BLE BENCH. 4. THE APPELLANT MOST RESPECTFULLY SUBMITS THAT HEARIN G OF THE APPEAL COULD NOT BE ATTENDED FOR THE REASONS STATED ABOVE. THE APPELLANT HAS NO DESIRE T O GIVE UP THE APPEAL AND EX- PARTE DECISION OF THE APPEAL WOULD CAUSE GRAVE AND IRREPARABLE INJURY TO THE APPELLANT. 5. IT IS RESPECTFULLY SUBMITTED THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE EX - PARTE ORDER DECIDING THE APPEAL MAY KINDLY BE RECALLED AND THE APPEAL MAY KINDLY BE RE-FIXED FOR HEARING TO GIVE ONE MORE OPPORTUNITY TO THE APPELLANT TO REPRE SENT ITS CASE. IT IS RESPECTFULLY SUBMITTED THAT IN THE LARGER INTEREST OF JUSTICE THE HON'BLE TRIBUN AL BE PLEASED TO ACCEPT THE PRAYER OF THE APPELLANT AND REHEAR THE MATTER. 3. ON THE OTHER HAND THE LD. DR RAISED NO OBJECT ION IF THE MATTER IS RECALLED FOR FRESH ADJUDICATION AS PER THE PROVISION OF LAW. 4. HEARD RIVAL SUBMISSIONS AND PERUSED THE RECOR D. ON PERUSAL OF THE ORDER DT. 12-02-2018, WE FIND THAT IN SPITE OF SERVICE OF NOTICES BY THE REGISTRY NEITHER ANY ONE APPEARED NOR THERE WAS ANY ADJOURNMENT APPL ICATION FILED ON BEHALF OF ASSESSEE FOR THE HEARING ON 12-02-2018. THUS, FOLLO WING THE VARIOUS DECISIONS M.A. NO 293/ AHD/2018 . A.Y. 2009-10 3 IN THE CASES OF MULTIPLAN INDIA (P) LTD REPORTED IN 38 ITD 320 (DEL), HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT REPORTED IN 223 ITR 480(MP) THE TRIBUNAL DISMIS SED THE APPEAL OF ASSESSEE BY PASSING EX PARTE ORDER FOR NON PROSECUT ION. WE FIND THAT THERE WAS SUFFICIENT REASON FOR THE ASSESSEE IN NOT APPEARING BEFORE THE TRIBUNAL ON THE SAID DATE OF HEARING [12-02- 2018]. THEREFORE, IN V IEW OF SUBMISSION OF ASSESSEE WE RECALL THE ORDER DATED 12-02-2018 BY ALLOWING TH IS MISC. APPLICATION FILED BY THE ASSESSEE. 5. NEXT DATE OF HEARING IN THIS MATTER IS 09/04 /2019 AND SAME HAS BEEN COMMUNICATED TO BOTH THE PARTIES AND NO SEPARATE NO TICE WILL BE SENT TO ANY OF THE PARTIES. 6. IN THE RESULT, THE MISC. APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 11 - 02- 2019 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDIC IAL MEMBER AHMEDABAD: DATED 11/02/2019 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABA