M/s. K.M. Enterprises, SILVASSA V. The Asstt. Commissioner of Income Tax, Vapi Circle, Vapi

MA 30/AHD/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6026 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 8 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 17-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER MA NO. 30/AHD/2017 [ARISING OUT OF ITA NO. 1293/AHD/2013 FOR AY.2009-10] ( VIRTUAL HEARING IN VIRTUAL COURT) M/S K.M. ENTERPRISES, PLOT NO. 1/D, NANJI INDUSTRIAL AREA, KHARADPADA, SILWASA. PIN:396230 PAN : AADFK3790J VS ACIT VAPI CIRCLE, KAPADWANJ, VAPI, GUJARAT APPLICANT RESPONDEDNT APPLICANT BY SHRI SUNIL TALATI - CA REVENUE BY MS ANUPMA SINGLA SR. DR DATE OF HEARING 25-09-2020 DATE OF PRONOUNCEMENT 25-09-2020 O R D E R PER PAWAN SINGH, JUDICIAL MEMBER : 1. THIS MISCELLANEOUS APPLICATION (MA) IS FILED BY ASSESSEE FOR RECALL OF ORDER DATED 09.06.2016. THE APPLICATION WAS FILED ON 17.10.2017. IN THE APPLICATION THE ASSESSEE STATED THAT HEARING OF APPEAL WAS FIXED ON 08.06.2016. THE AUTHORIZED REPRESENTATIVE (AR) OF THE ASSESSEE COULD NOT APPEAR BEFORE THE TRIBUNAL ON 8 TH JUNE 2016 AS THE NOTICE OF HEARING OF THE APPEAL WAS RECEIVED BY SECURITY OFFICER AT THE FACTORY ADDRESS OF THE ASSESSEE AT NANJI INDUSTRIAL ESTATE, KARGOPADA, SILVASA. DUE TO CARELESS OF THE SECURITY OFFICER THE NOTICE WAS NOT HANDED OVER TO THE FACTORY MANAGER THUS, IT COULD NOT BE ULTIMATELY INFORMED TO THE PARTNER MA NO. 30/AHD/2017 IN ITA NO. 1293/AHD2013 2 OF THE ASSESSEE. THE APPLICANT/ ASSESSEE HAS ALSO FILED AFFIDAVITS OF FAYYAZ SHAIKH SECURITY OFFICER AND JOEF THANAWALA FACTORY MANAGER OF ASSESSEES FIRM. IN THE APPLICATION IT IS FURTHER CONTENDED THAT THE NON- APPEARANCE ON THE DATE WHEN THE APPEAL WAS FIXED ON 09.06.2016, FOR HARING WAS NOT INTENTIONAL. 2. THE LD. AR FOR THE ASSESSEE MADE HIS SUBMISSIONS ON THE SIMILAR LINES. THE LD. AR FURTHER SUBMITS THAT THE NON-APPEARANCE WAS NEITHER INTENTIONAL NOR DELIBERANT BUT WAS DUE TO THE BONA FIDE REASON THAT THE PARTNERS OF THE ASSESSEE WAS NOT INFORMED BY HIS SECURITY OFFICER AND THE FACTORY MANAGER ABOUT THE DATE OF HEARING. THE LD. AR FOR THE ASSESSEE PRAYED THAT ASSESSEE MAY BE GIVEN OPPORTUNITY OF HEARING ON MERIT. THE ASSESSEE HAS GOOD CASE ON MERIT AND HE WOULD SUFFER IRREPARABLE INJURY IF THE ORDER IS NOT RECALLED. THE REVENUE MAY BE COMPENSATED BY IMPOSING COST ON THE ASSESSEE. THE LD. AR FOR THE ASSESSEE SUBMITS THAT HE UNDERTAKE ON BEHALF OF THE ASSESSEE THAT THE ASSESSEE WILL NEVER DEFAULT IN FUTURE IN MAKING APPEARANCE BEFORE THE TRIBUNAL. THE LD. AR FOR THE ASSESSEE SUBMITS THAT THE GROUND NO. 1 OF APPEAL RAISED BY THE REVENUE IS IN FACT COVERED IN FAVOR OF THE ASSESSEE BY THE DECISION OF TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2008-09 IN ITA NO. 2653/AHD/2011 DATED 15/05/2015. 3. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE SUBMITS THAT THERE IS NO MISTAKE APPARENT IN THE ORDER PASSED BY TRIBUNAL. THE ASSESSEE WAS SERVED WITH THE PROPER NOTICE OF HEARING MA NO. 30/AHD/2017 IN ITA NO. 1293/AHD2013 3 OF APPEAL. THE TRIBUNAL WHILE DECIDING THE APPEAL FOR THE YEAR UNDER CONSIDERATION HAS DULY CONSIDERED THE DECISION OF TRIBUNAL FOR A.Y. 2008-09 AND DISTINGUISHED THE FACTS. THE TRIBUNAL AFTER DISTINGUISHING THE DECISION OF EARLIER YEAR PASSED THE ORDER. THE LD. DR FOR THE REVENUE PRAYED FOR DISMISSAL OF THE MA. 4. WE HAVE CONSIDERED THE CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE RECORD ACCORDINGLY. WE HAVE NOTED THAT THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING ON 08.06.2016. THE APPEAL OF THE REVENUE WAS ALLOWED BY THE TRIBUNAL AFTER CONSIDERING THE SUBMISSIONS OF THE LD. DR FOR THE REVENUE. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE FACT THAT THE SUBSTANTIAL RIGHT OF THE ASSESSEE ARE INVOLVED IN THE PRESENT APPEAL. AND FURTHER ON SIMILAR GROUND OF APPEAL (GROUND NO1) THE TRIBUNAL IN A.Y. 2008-09, ALLOWED SIMILAR RELIEF TO THE ASSESSEE. THEREFORE, IN THE CONSIDERING THE PRINCIPLE OF NATURAL JUSTICE, THE ORDER DATED 09.06.2016 IS RECALLED. THE ASSESSEE IS BURDENED WITH COST OF RS. 10,000/-. THE COST SHALL BE DEPOSITED IN THE APPROPRIATE ACCOUNT OF REVENUE FOR DEPOSIT OF COST. 5. CONSIDERING THE FACTS THAT WE HAVE RECALLED THE ORDER DATED 09.06.2016, THUS, THE HEARING OF THE APPEAL IS FIXED ON 01.12.2020. THE ASSESSEE IS DIRECTED TO FILE ORIGINAL CHALLAN OF DEPOSIT OF COST ON THE NEXT DATE OF HEARING BEFORE THE TRIBUNAL AND TO ALSO SUPPLY COPY OF THE SAID CHALLAN IN THE OFFICE OF LD. DR FOR THE REVENUE. UNLESS THE CHALLAN OF COST IS NOT PRODUCED THE APPEAL WOULD NOT BE HEARD AFRESH ON MERIT. THE REGISTRY IS MA NO. 30/AHD/2017 IN ITA NO. 1293/AHD2013 4 DIRECTED TO INTIMATE/ SERVED THE NOTICE OF HEARING TO THE ASSESSEE AS WELL AS THE LD. AR/COUNSEL FOR THE ASSESSEE. SINCE, THE APPEAL RELATES TO A.Y. 2009-10, THEREFORE, THE ASSESSEE IS FURTHER DIRECTED TO FILE ALL THE NECESSARY PAPER BOOK/ EVIDENCES IN ITS SUPPORT IF REQUIRED AT LEAST ONE WEEK BEFORE THE DATE OF HEARING. THE ASSESSEE IS DIRECTED TO BE VIGILANT IN FUTURE IN TIMELY ATTENDING THE HEARING OF THE APPEAL. 6. IN THE RESULT, THE MA OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 25/09/2020. SD/- SD/- (DR. ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER SURAT, DATED: 25/09/2020 SAMANTA, PS COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR // TRUE COPY // /TRUE COPY/ BY ORDER ASSISTANT REGISTRAR, SR. PS/ PS ITAT, SURAT