M/s. Orthonova Hospital, Jalandhar V. The ACIT, Jalandhar

MA 31/ASR/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0164 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 15-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J S BHASIN
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER M.A. NO.31(ASR)/2013 (ARISING OUT OF ITA NO.538(ASR)/2011) ASSESSMENT YEAR:2007-08 PAN :AAAF-7491B M/S. ORTHONOVA HOSPITAL, VS. ASSTT. COMMR. OF INCO ME TAX, JALANDHAR. CC-1, JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.J.S.BHASIN, ADVOCATE RESPONDENT BY:SH.TARSEM LAL, DR DATE OF HEARING:10/05/2013 DATE OF PRONOUNCEMENT:10/05/2013 ORDER PER BENCH ; THE ASSESSEE HAS FILED PRESENT MISCELLANEOUS APPLI CATION FOR RECALLING THE ORDER OF THE ITAT, AMRITSAR BENCH, DA TED 17 TH JANUARY, 2013 PASSED IN ITA NO.538(ASR)/2011 FOR THE ASSESSMENT YEAR 2007-08, IN WHICH THIS BENCH HAS DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-APPEARANCE. 2 2. THE LD. COUNSEL FOR THE ASSESSEES, MR. J.S. BHA SIN, ADVOCATE HAS FILED WRITTEN SUBMISSIONS DATED 12.02.2013, WHICH A RE REPRODUCED AS UNDER : SUB: APPLICATION FOR RECALLING OF ORDER UNDER RULE 24 OF APPELLATE TRIBUNAL RULES, 1963. RESPECTFULLY SHOWETH: 1. THAT THE APPELLANT HEREIN IS IN RECEIPT OF ORDE R DATED 17.01.2013 PASSED BY THE HONBLE BENCH IN ITA NO.538(ASR)/20 12 WHEREBY HIS APPEAL HAS BEEN DISMISSED EX-PARTE FO R WANT OF PROSECUTION, BY APPLYING CIT VS. MULTIPLAN INDIA LTD. 38 ITD 310 (DELHI). A COPY OF THIS ORDER IS APPENDED AS ANNEXURE A FOR KIND PERUSAL. 2. THAT THE ASSESSEE HAS BEEN INFORMED BY HIS COUN SEL SH.J.S.BHASIN, ADVOCATE THAT HE COULD NOT MAKE APP EARANCE IN THE ABOVE MATTER, FIXED FOR HEARING ON 17.01.2013, INA SMUCH AS, IN HIS CASE DIARY, THE DATE OF HEARING, HAD BEEN WRONGLY NOTED AS 29.01.2013. IN FACT, ON 23.10.2012, WHEN THE ABOVE APPEAL WAS LAST FIXED BEFORE THE BENCH ALONG WITH THREE MORE APPEALS REPRESENTE D BY MR. BHASIN, ALL THE FOUR APPEALS ARE ADJOURNED TO A COMMON DAT E, WHICH ON PRONOUNCEMENT IN THE COURT, WAS NOTED AS 29.01.201 3 AND ACCORDINGLY, IN NEXT YEARS DIARY OF THE COUNSEL, ALL THE FOUR MATTERS WERE NOTED FOR HEARING ON 29.01.2013. IT WAS THIS UNINTENDED ERROR IN NOTING THE DATE BY THE COUNSEL THAT HE FAILED TO M AKE APPEARANCE BEFORE THE BENCH ON 17.01.2012, THE ACTUAL DATE FI XED FOR HEARING. TO SUPPORT THIS VERSION, RELEVANT PAGES OF THE CASE D IARY OF THE COUNSEL FOR 23.10.2012, 17.01.2013 AND 29.01.2013 ARE APPE NDED FOR KIND PERUSAL OF THE BENCH. 3. THAT NOTWITHSTANDING THE ABOVE, FACTS OF THE CA SE WERE WELL NARRATED IN APPEAL MEMO WITH ENOUGH GROUNDS RAISED THAT COULD HAVE ENABLED THE HONBLE BENCH TO DECIDE THE CASE ON ME RITS RATHER THAN DISMISSING THE APPEAL EX-PARTE, MORESO WHEN CROSS APPEAL OF THE DEPARTMENT WAS ALSO FIXED ON SAME DATE, BUT ADJOUR NED TO SOME OTHER DATE. IT IS TRITE LAW THAT EVEN WHILE DISPOSING O F THE APPEAL EX-PARTE, 3 THE MATERIAL ON RECORD HAS TO BE TAKEN INTO CONSI DERATION.NON CONSIDERATION OF SUCH MATERIAL, ALSO CONSTITUTES REASONABLE CAUSE, TO RECALL THE ORDER. 4. WITHOUT PREJUDICE TO ABOVE, RULE 24 OF THE INCO ME TAX (APPELLATE TRIBUNAL), RULES, 1963 CLEARLY PROVIDES FOR A DECISION ON THE MERITS EVEN IN THE ABSENCE OF THE APPELLANT, S O THAT DISMISSAL FOR DEFAULT, WHICH IS A PROCEDURE RECOGNIZED IN CIVIL COURTS, WILL NOT HAVE APPLICATION. IT WAS SO HELD IN THE CASE OF RAJENDR A PRASAD BORAH V. ITAT (2008) 302 ITR 243 (GAUHATI) FOLLOWING THE DE CISION OF HONBLE SUPREME COURT IN CIT VS. S CHENNIAPPAL MUD ALIAR (1969) 74 ITR 41 (SC). 5. THEREFORE, IN VIEW OF THE ABOVE SUBMISSIONS, IT BE KINDLY APPRECIATED THAT THE ASSESSEE WAS PREVENTED BY SUF FICIENT CAUSE IN FAILING TO MAKE APPEARANCE BEFORE THE HONBLE ON 17.01.2013 WHEN THE APPEAL WAS LAST FIXED FOR HEARING. 6. THE CHALLAN FOR REQUISITE FEE OF RS.50/- SINCE PAID IS ENCLOSED. IT IS, THEREFORE, HUMBLY PRAYED THAT THE ENCLOSED ORDER OF THE BENCH BE KINDLY RECALLED AND THE MATTER BE RE-FIX ED FOR HEARING ON MERITS. SD/- DT.12.02.2013 ASSESSEE THROUGH J.S.BHASIN ADVOCATE IN VIEW OF THE ABOVE SUBMISSIONS, THE LD. COUNSEL F OR THE ASSESSEE HAS PRAYED TO RECALL THE ORDER OF THE TRIBUNAL DATED 17 .01.2013. 3. THE LD. DR, SH.TARSEM LAL, ON THE OTHER HAND, DI D NOT OPPOSE THE REQUEST OF ASSESSEES COUNSEL FOR RECALLING THE ORD ER OF THE TRIBUNAL. 4 4. WE HAVE HEARD BOTH THE PARTIES AND HAVE THOROUGH LY GONE THROUGH THE CONTENTIONS RAISED BY THE ASSESSEE IN THE MISCELLA NEOUS APPLICATION. WE ARE OF THE VIEW THAT THE ASSESSEE HAS EXPLAINED REASONA BLE AND SUFFICIENT CAUSE FOR RECALL OF THE ORDER OF THE TRIBUNAL DATED 17 TH JANUARY,2013. THEREFORE, IN THE INTEREST OF JUSTICE, WE RECALL THE SAID ORDER THE TRIBUNAL AND FIX THE MAIN APPEAL FOR HEARING ON 26.08.2013. NO SEPARATE NOTICE BE ISSUED AS THIS ITSELF BE A NOTICE FOR HEARING TO BOTH THE PARTIES. 5. IN THE RESULT, THE MISC. APPLICATION OF THE ASSE SSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10TH MAY, 2013. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10TH MAY, 2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. ORTHONOVA HOSPITAL, JALANDHAR. 2. THE ACIT, CC-1, JALANDHAR. 3. THE CIT(A), JALANDHAR. 4. THE CIT, JALANDHAR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.