Shri Abhinav Payarelal Purwar, Ahmedabad V. The Income Tax Officer, Ward-2(1), Ahmedabad

MA 3/AHD/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4169 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 05-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: U S BHATI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD , BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. M.A. NO.3/AHD/2016 (IN ITA. NO.2809/AHD/2015) (ASSESSMENT YEAR:2009-10) SHRI ABHINAV PAYARELAL PURWAR 2263, HOLICHAKLA, BHANDERI POLE, KALUPUR, AHMEDABAD 380 001 APPELLANT VS. THE INCOME TAX OFFICER, WARD 2(1), AHMEDABAD. RESPONDEN T PAN: ANIPP8853F /BY APPELLANT : SHRI U. S. BHATI, A.R. /BY RESPONDENT :SHRI MUKESH SHARMA, SR. D.R. /DATE OF HEARING : 20.05.2016 /DATE OF PRONOUNCEMENT : 23.05.2016 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY ASSESSEE SEEKING RECALL OF THE EX PARTE ORDER DATED M.A. NO.3/AHD/16(IN ITA NO. 2809/AHD/2015) ASST. YEAR 2009-10 (SHRI ABHINAV P. PURWAR VS. ITO) 2 30/12/2015, PASSED BY THIS TRIBUNAL BY DISMISSING T HE APPEAL OF ASSESSEE. THE SUBMISSION OF ASSESSEE BY THIS MISCELLANEOUS APPLICATION IS AS UNDER: 1. THE ABOVE APPEAL WAS DISMISSED IN LIMINE VIDE ORDER DATED 30TH DECEMBER, 2015, WHICH READS AS UNDER: - '2. NOTICE OF HEARING WAS SENT BY REGISTERED POST WITH ACKNOWLEDGMENT DUE TO THE ASSESSE ON 08.12.2015 FIXING THE DATE OF HEARING ON 28.12.2015. THE SAID NOTICE HAS BEEN SERVED UPON THE ASSESSEE ON 12.12.2015 AS IS EVIDENT FROM THE POSTAL ACKNOWLEDGMENT SLIP WHICH IS PLACED ON RECORD. WHEN THE CASE WAS CALLED FOR HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE AND NEITHER ANY ADJOURNMENT APPLICATION WAS FILED. THIS SHOWS THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING WITH HIS APPEAL. THEREFORE, IN VIEW OF THE DECISION OF HON'B LE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT (1977) 223 ITR 480 (M.P.) AND THE DECISION OF HON'BLE DELHI TRIBUNAL I N THE CASE OF CIT VS. MULTIPLAN INDIA (PVT.) LTD; 38 ITD 320 (DEL), I DISMISS THE APPEAL OF THE ASSESSEE IN LIMINE.' 2. THE APPELLANT BEGS TO SUBMIT THIS APPLICATION U/ S 254(2) OF THE INCOME TAX ACT, 1961 FOR RECTIFICATIO N OF THE SAID ORDER IN VIEW OF THE FOLLOWING :- (A) THAT THE APPELLANT WANTED TO PURSUE THE APPEAL BECAUSE HE HAD FILED AN APPEAL AGAINST THE ORDER OF THE LD. C.I.T.(APPEALS) AFTER PAYMENT OF RS.8,000/- AS APPEAL FEE AND HAD ALSO APPOINTED M/S BHATI & ASSOCIATES, ADVOCATES, AHMEDABAD TO REPRESENT HIS MATTER BEFORE THE HON'BLE TRIBUNAL (THROUGH THEIR CHARTERED ACCOUNTANT SHRI PRAKASH NANDOLA). M.A. NO.3/AHD/16(IN ITA NO. 2809/AHD/2015) ASST. YEAR 2009-10 (SHRI ABHINAV P. PURWAR VS. ITO) 3 (B) THAT THE FIRST NOTICE OF HEARING WAS RECEIVED B Y THE APPELLANT ON 12.12.2015 AND IMMEDIATELY IT WAS FORWARDED BY HIM TO THE OFFICE OF HIS CHARTERED ACCOUNTANT SHRI PRAKASH NANDOLA FOR ONWARD TRANSMISSION. HOWEVER, IT APPEARS THAT THE STAFF MEMBER OF SHRI NANDOLA HAD FAILED TO PLACE THE SAID NOTICE BEFORE THE CHARTERED ACCOUNTANT IN TIME AND HENCE THE SAME COULD NOT BE FORWARDED ONWARDS TO THE OFFICE OF M/S BHATI & ASSOCIATES, ADVOCATES. HENCE, NEITHER THE AUTHORISED REPRESENTATIVE WAS ABLE TO APPEAR NOR ANY ADJOURNMENT WAS SOUGHT. (C) THE STAFF MEMBER OF SHRI PRAKASH NANDOLA INFORMED HIM ABOUT THE NOTICE IN AFTERNOON ON 28.12.2015, WHERE AFTER, HE HAS IMMEDIATELY CONTACTED SHRI UMAID SINGH BHATI, ADVOCATE AND APPRISED HIM ABOUT THE FACTS. (D) AN AFFIDAVIT OF THE APPELLANT ASSERTING THE ABOVE FACTS IS ALSO ENCLOSED HEREWITH. (E) SINCE THE APPELLANT HAD FILED THE STATEMENT OF FACTS AND THE GROUNDS OF APPEAL ALONG-WITH THE COPIES OF ORDERS OF THE LOWER AUTHORITIES, THE APPELLANT WOULD LIKE TO SUBMIT, RELYING ON THE ORDER OF HON'BLE GAUHATI HIGH COURT IN THE CASE OF RAJENDRA PRASAD BORAH V/S ITAT, 302 ITR 243 (GAU), THAT THE TRIBUNAL SHOULD HAVE DECIDED THE APPEAL ON MERITS. 3. IN THE ABOVE CIRCUMSTANCES, IT IS RESPECTFULLY SUBMITTED THAT THE HON'BLE TRIBUNAL MAY BE PLEASED TO ADMIT THIS MISCELLANEOUS APPLICATION IN ORDER TO RECALL ITS EARLIER ORDER IN THE LIGHT OF T HE ABOVE FACTS AND THE DECISION OF THE GUAHATI HIGH COURT (SUPRA).DECIDED THE APPEAL ON MERITS. M.A. NO.3/AHD/16(IN ITA NO. 2809/AHD/2015) ASST. YEAR 2009-10 (SHRI ABHINAV P. PURWAR VS. ITO) 4 2. ASSESSEE REQUESTED THAT THIS EX PARTE TRIBUNAL O RDER SHOULD BE RECALLED BECAUSE THERE WAS REASONABLE CAU SE FOR NON APPEARANCE OF THE ASSESSEE ON THAT DATE. IN VIEW OF THE CIRCUMSTANCES EXPLAINED BY THE LEARNED COUNSEL FOR THE ASSESSEE, WE ARE OF THE VIEW THAT THERE WAS SUFFICI ENT CAUSE FOR NOT ATTENDING THE DATE OF HEARING BEFORE THE TRIBUN AL. ACCORDINGLY, THE EX-PARTE ORDER OF THE TRIBUNAL IN ITA NO. 2809/AHD/2015 DATED 30.12.2015 IS HEREBY RECALLED. THE REGISTRY IS DIRECTED TO FIX THE HEARING OF THIS APP EAL ON 19.07.2016. THERE IS NO NECESSITY FOR SERVING SEPARATE NOTICE FOR DATE OF HEARING ON THE PARTIES. WE DIRECT ACCO RDINGLY. 3. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS THE 23 RD DAY OF MAY, 2016. SD/- SD/- (ANIL CHATURVEDI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R AHMEDABAD: 23/05/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE $ %&%'( ) / CONCERNED CIT 4 )- / CIT (A) M.A. NO.3/AHD/16(IN ITA NO. 2809/AHD/2015) ASST. YEAR 2009-10 (SHRI ABHINAV P. PURWAR VS. ITO) 5 ,-./00'(1 '( 123& / DR, ITAT, AHMEDABAD 4/5678 / GUARD FILE. BY ORDER / 1 / 2% '( 123&