Shri Naverlal D.Desai, Surat V. The ACIT., Circle-3(1), Surat

MA 31/AHD/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6791 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 08-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Keywords: Opportunity of being heard; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'C' BEFORE SHRI MUKUL SHRAWAT, JUDICIAL MEMBER AND SHRI A N PAHUJA, ACCOUNTANT MEMBER M A NO.31/AHD/2011 [IN IT(SS)A NO.58/AHD/2007] ( BLOCK PERIOD ENDING ON 29-10-1999) SHRI NATVERLAL D DESAI, A-502, YOGI COMPLEX, NEW RANDER ROAD, SURAT V/S ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-3(1) SURAT PAN: ACAAD 3882 D [APPLICANT] [ORIGINAL APPELLANT] [RESPONDENT] [ORIGINAL RESPONDNET] APPLICANT BY :- SHRI HARDIK VORA, AR RESPONDENT BY:- SHRI B L YADAV, DR DATE OF HEARING:- 26-08-2011 DATE OF PRONOUNCEMENT:- 2 -09-2011 O R D E R A N PAHUJA: THIS MISC. APPLICATION[MA] HAS BEEN FILED ON 8.3. 2011 AGAINST AN ORDER DATED 01-06-2010 OF THE TRIBUNAL I N IT(SS)A.NO.58/AHD/2007 FOR THE BLOCK PERIOD ENDING 29.10.1999, DISMISSING THE APPEAL OF THE ASSESSEE, RELYING UPON THE DECISION OF DELHI BENCH OF THE TRIBUNAL IN THE CASE OF MULTIPLA N INDIA (P) LTD. VS CIT 38 ITD 320 (DEL). 2. IN THEIR MISCELLANEOUS APPLICATION, THE ASSESSE E SUBMITTED THAT THE , THROUGH OVER SIGHT IN NOTING T HE DATE OF HEARING , THE CA COULD NOT PUT IN APPEARANCE ON 01.06.2010.T HE ASSESSEE WAS INTERESTED IN PURSUING THE APPEAL AS IT CAN BE EVIDENT FROM THE FACT THAT HEARING WAS EARLIER FIXED ON 28.05.2007 W HEN ASSESSEE'S COUNSEL ASKED FOR ADJOURNMENT. MOREOVER, THE VALIDI TY OF ASSESSMENT U/'S 158BD WAS CHALLENGED, WHICH IS A COVERED MATTE R IN FAVOUR OF ASSESSEE. ACCORDINGLY, THE ASSESSEE REQUESTED TO R ECALL THE ORDER DATED 01.06.2010. 2 MA NO.31/AHD/2011 3. THE LD. AR ON BEHALF OF THE ASSESSEE MERELY RE ITERATED WHAT IS MENTIONED IN THE MA WHILE THE LD. DR OPPOSED THE M A, REASONS BEING GENERAL IN NATURE. 4. AFTER HEARING THE PARTIES AND CONSIDERING THE FACTS OF THE CASE, WE ARE OF THE OPINION THAT THE DISPOSAL OF T HE APPEAL WAS IN VIOLATION OF THE PRINCIPLE OF ' AUDI ALTERAM PARTEM '. THE PRAYER IN SUCH A SITUATION FOR REHEARING THE APPEAL IS NOT A PRAYER TO REVIEW ITS EARLIER DECISION, RATHER IT IS TO SET ASIDE AN EX P ARTE ORDER AND FOR AFFORDING AN OPPORTUNITY OF BEING HEARD. THIS POWER IS INHERENT IN THE TRIBUNAL. POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF R. 24 OF THE ITAT RULES, 1963, AND THAT TOO ONLY IN CASES WH ERE THE ASSESSEE SHOWS THAT IT HAD A REASONABLE CAUSE FOR BEING ABSE NT AT A TIME WHEN THE APPEAL WAS TAKEN UP AND WAS DECIDED EX PAR TE. IN THIS CONNECTION, HONBLE GAUHATI HIGH COURT IN THE CASE OF RAJENDRA PRASAD BORAH VS ITAT AND OTHERS,302 ITR 243, RELYIN G UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CI T VS S.CHENNIAPPA MUDALIAR,74 ITR 41 AND THEIR OWN DECIS ION IN THE ASSAM TRIBUNE VS. CIT,285 ITR 452, HELD THAT APART FROM THE FACT THAT, SECTION 254( EARLIER SECTION 33)OF THE ACT MAKES IT INCUMBENT ON THE LEARNED TRIBUNAL TO DISPOSE OF THE APPEALS ON MERITS AS HAS BEEN ENUNCIATED BY THE APE X COURT IN CIT VS S.CHENNIAPPA MUDALIAR,74 ITR 41, RULE 24 AS IT S TANDS, PER SE DOES NOT EMPOWER THE LEARNED TRIBUNAL TO DISMISS AN APPEAL FOR DEFAULT IN THE ABSENCE OF THE APPELLANT. THE LEARNE D TRIBUNALS RELIANCE ON THE DECISION OF THE INCOME-TAX APPELLAT E TRIBUNAL, DELHI RENDERED IN CIT VS.MULTIPLAN INDIA(P) LTD.,38 ITD 3 20(DELHI) , IS APPARENTLY MISPLACED IN THE TEETH OF THE DECISION O F THE APEX COURT IN CIT VS S.CHENNIAPPA MUDALIAR,74 ITR 41. 5. IN THE LIGHT OF AFORESAID DECISION OF HONBLE GAUHATI HIGH COURT AND REASONS GIVEN BY THE APPLICANT, WE RECALL THE IMPUGNED ORDER DATED ORDER DATED 1.6.2010 OF THE ITAT AND DIRECT THE REGISTRY TO FIX THE MATTER FOR HEARING ON 23.11.2011. BOTH THE PART IES WERE INFORMED IN THE OPEN COURT ACCORDINGLY. 3 MA NO.31/AHD/2011 6 IN THE RESULT, MISCELLANEOUS APPLICATION IS ALL OWED ORDER PRONOUNCED IN THE COURT TODAY ON 2-09-2011 SD/- SD/- ( MUKUL SHRAWAT ) JUDICIAL MEMBER ( A N PAHUJA ) ACCOUNTANT MEMBER DATED : 2-09-2011 COPY OF THE ORDER FORWARDED TO: 1. SHRI NATVERLAL D DESAI, A-502, YOGI COMPLEX, NEW RANDER ROAD, SURAT 2. THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-3(1 ) SURAT 3. CIT CONCERNED 4. CIT(A)-II, SURAT 5. DR, ITAT, AHMEDABAD BENCH-C, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD