SHRI KIRODI MAL, ALWAR V. INCOME TAX OFFICER, ALWAR

MA 31/JPR/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4135 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 13-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROONI PAUL CIT DHK
• Assessee Lawyers: JAVED KHAN
• Section: 254(2); 22

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES A, JAIPUR JH LANHI XLKA ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM M.A. NO. 31/JP/2020 (ARISING OUT OF ITA NO. 883/JP/2017) FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2009-10 SHRI KIRODI MAL, S/O- SHRI PRABHATI, R/O- VILLAGE- DALALPUR, POST- SHAHPUR, DISTT.- ALWAR (RAJASTHAN) C UKE VS. I.T.O. WARD-1(1), ALWAR. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: BGLPM 4153 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI JAVED KHAN (ADV) JKTLO DH VKSJ LS @ REVENUE BY : SMT. ROONI PAUL (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 16/10/2020 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 22/10/2020 VKNS'K@ ORDER PER: SANDEEP GOSAIN, J.M. BY WAY OF THIS MISC. APPLICATION, THE ASSESSEE IS SEEKING RECALLING OF THE ORDER DATED 10/10/2019 PASSED IN ITA NO. 883/JP/2017 OF THIS TRIBUNAL WHEREBY THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR WANT OF PROSECUTION. 2. THE HEARING OF THIS M.A. WAS CONCLUDED THROUGH VIDEO CONFERENCE IN VIEW OF THE PREVAILING SITUATION OF COVID-19 PANDEMIC. MA 31/JP/2020_ SHRI KIRODI MAL VS ITO 2 3. IN HIS MISC. APPLICATION, THE ASSESSEE HAS STATED THE REASONS FOR NON-APPEARANCE BEFORE THE BENCH ON THE DATE FIXED FOR HEARING I.E. ON 13/09/2019. THE CONTENTS OF THE MISC. APPLICATION READ AS UNDER: THIS MISCELLANEOUS APPLICATION U/S 254(2) OF THE INCOME TAX ACT, 1961 IS BEING PRESENTED WITH THE PRAYER FOR RESTORATION OF THE ABOVEMENTIONED ORDER OF THIS HON'BLE BENCH WHICH WAS PASSED EX PARTE WITHOUT PROVIDING PROPER OPPORTUNITY OF HEARING TO ASSESSEE. HENCE, THIS APPLICATION IS BEING SUBMITTED ON THE BACKDROP OF FOLLOWING FACTS AND GROUNDS: 1. THAT, THE ABOVEMENTIONED APPEAL I.E. ITA NO.: 883/JP/2017 WAS FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-ALWAR WHICH WAS DECIDED BY THIS HON'BLE BENCH ON 10.10.2019. 2. THAT, VIDE ABOVEMENTIONED ORDER DATED 10.10.2019, THIS HON'BLE BENCH HAD DISMISSED THE APPEAL OF ASSESSEE EX PARTE WITHOUT PROVIDING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. ALSO, THE APPEAL WAS NOT DISMISSED IN DEFAULT OF APPEARANCE, BUT WAS DISMISSED ON MERITS, HOWEVER, SINCE THE APPEAL WAS DECIDED EX PARTE, THE COUNSEL FOR ASSESSEE HAD NO OPPORTUNITY TO ASSIST THE HON'BLE BENCH IN INVITING THE KIND ATTENTION OF THE HON'BLE BENCH TOWARDS THE CRUCIAL FACTS AND EVIDENCES AVAILABLE ON RECORD AND THEREFORE THE SAME COULD NOT BE TAKEN INTO CONSIDERATION WHILE PASSING THE ORDER DATED 10.10.2019. ACCORDINGLY, THE APPEAL OF ASSESSEE WAS DISMISSED. 3. THAT, WHILE NOTICING THE DEFAULT OF THE COUNSEL OF ASSESSEE IN NOT APPEARING BEFORE THE HON'BLE TRIBUNAL ON THE DATE OF HEARING, THE HON'BLE BENCH HAD OBSERVED AS UNDER MA 31/JP/2020_ SHRI KIRODI MAL VS ITO 3 NONE HAS APPEARED ON BEHALF OF THE ASSESSEE WHEN THIS APPEAL WAS CALLED FOR HEARING REPEATEDLY UP TO THE TIME OF RISING OF THE BENCH DESPITE THE FACT THAT ON THE LAST DATE OF HEARING, THE REPRESENTATIVE OF THE ASSESSEE HAS DULY NOTED DOWN THE DATE OF HEARING. ACCORDINGLY, I PROPOSE TO HEAR AND DISPOSE OFF THIS APPEAL EX PARTE.' 4. THAT, THE NON-APPEARANCE ON BEHALF OF THE COUNSEL OF ASSESSEE WAS NOT DELIBERATE AT ALL. RATHER, IT WAS ONLY A MATTER OF GENUINE MISTAKE WHICH LED THE COUNSEL TO BELIEVE THAT THE SMC BENCH OF THE HON'BLE TRIBUNAL WAS NOT SITTING ON THE DATE OF HEARING I.E. 13.09.2019. IT IS SUBMITTED THAT, THE WEEKLY CAUSE-LIST OF THE HON'BLE TRIBUNAL FOR THE WEEK 11.09.2019 TO 13.09.2019 AND 16.09.2019 TO 20.09.2019 WAS CIRCULATED 06/09/2019. IN THE SAID CAUSE-LIST, IT WAS CLEARLY DECLARED THAT, THE SMC BENCH SHALL NOT BE FUNCTIONING ON 11.09.2019 TO 13.09.2019. A COPY OF THE SAID CAUSE-LIST DATED 11.09.2019 TO 13.09.2019 IS ANNEXED HEREWITH AND MARKED AS ANNEXURE 1. 5. THAT, IN VIEW OF THE DECLARATION SO MADE IN THE CAUSE-LIST ISSUED BY THE REGISTRY OF THE HON'BLE TRIBUNAL, THE COUNSEL FOR THE ASSESSEE CAME TO BELIEVE THAT THE SMC BENCH SHALL NOT SIT ON 13.09.2019 I.E. THE DATE ON WHICH THE PRESENT APPEAL WAS FIXED FOR HEARING. HENCE, THERE WAS NO REASON FOR THE COUNSEL TO APPEAR BEFORE THE HON'BLE TRIBUNAL IN VIEW OF THE ADVANCE INFORMATION CIRCULATED BY THE REGISTRY THAT THE BENCH SHALL NOT SIT ON THE DATE OF HEARING. 6. THAT, TO THE SHOCK AND SURPRISE OF THE COUNSEL OF ASSESSEE, IT LATER ON CAME TO HIS KNOWLEDGE THAT THE HON'BLE SMC BENCH DID MA 31/JP/2020_ SHRI KIRODI MAL VS ITO 4 FUNCTION ON THE SAID DATE I.E. 13.09.2019 AND THAT THE PRESENT APPEAL HAS BEEN DECIDED EX PARTE. 7. THAT, UPON ENQUIRING, IT CAME TO THE KNOWLEDGE OF THE COUNSEL OF ASSESSEE THAT, AFTER THE PREVIOUS CAUSE-LIST, ANOTHER NOTE WAS CIRCULATED LATERON, WHEREBY, THE EARLIER DECLARATION WAS CHANGED, AND IT WAS NOW DECLARED THAT THE HON'BLE SMC BENCH WOULD SIT ON 13.09.2019. 8. THAT, AS A MATTER OF GENUINE AND BONA-FIDE MISTAKE, THE COUNSEL FOR ASSESSEE COULD NOT COME ACROSS SUCH A NOTE WHICH WAS CIRCULATED LATER ON AND THEREFORE, CONTINUED TO BELIEVE THAT THE HON'BLE SMC BENCH SHALL NOT BE SITTING ON 13.09.2019. HENCE, HE COULD NOT APPEAR BEFORE THE HON'BLE TRIBUNAL. 9. THAT, IN VIEW OF THE MODIFICATION OF DECLARATION OF NON-SITTING OF THE BENCH ON 13.09.2019, THE ASSESSEE MUST HAVE BEEN PROVIDED JUST ONE MORE OPPORTUNITY IN THE INTERESTS OF JUSTICE. WITHOUT ALLOWING SUCH OPPORTUNITY, THE SAID ORDER DATED 10.10.2019 REFLECT A MISTAKE APPARENT ON THE FACE OF THE RECORD REQUIRING RECTIFICATION OF THE SAME BY RECALLING THE SAME. 10. THAT, DUE TO GENUINE MISTAKE AND BONA-FIDE MISUNDERSTANDING, THE SUBSEQUENT DEVELOPMENT OF MODIFICATION OF THE EARLIER DECLARATION AND THE FACT OF FUNCTIONING OF BENCH ON THE DATE OF HEARING - 13.09.2019 COULD NOT BE NOTED BY THE COUNSEL FOR ASSESSEE. AN AFFIDAVIT OF THE COUNSEL OF ASSESSEE DEPOSING THIS FACT IS BEING SUBMITTED AS ANNEXED HEREWITH AND MARKED AS ANNEXURE 2. 11. THAT, NO OTHER OPPORTUNITY WAS PROVIDED TO THE ASSESSEE TO BE PRESENT BEFORE THE HON'BLE TRIBUNAL AND PRESENT HIS CASE AND MA 31/JP/2020_ SHRI KIRODI MAL VS ITO 5 THEREFORE, IN THE INTERESTS OF JUSTICE, THE ORDER DATED 10.10.2019 NEEDS TO BE RECALLED AND THE APPEAL OF ASSESSEE NEEDS TO BE RESTORED. 12. THAT, APART FROM THE ABOVE, IT IS FURTHER SUBMITTED THAT IN THE ORDER DATED 10.10.2019, SEVERAL FACTS AND CRUCIAL EVIDENCES HAVE ESCAPED THE ATTENTION OF THE HON'BLE BENCH WHICH ARE OF SUCH NATURE, THAT IF TAKEN INTO CONSIDERATION, WOULD CLEARLY ESTABLISH THE CASE OF ASSESSEE. THEREFORE, THE ORDER DATED 10.10.2019 NEEDS TO BE RECALLED AND AN OPPORTUNITY OF HEARING IS REQUIRED TO BE PROVIDED TO THE ASSESSEE. THEREFORE, IN LIGHT OF THE MISTAKES APPARENT FROM RECORD IN THE ORDER OF THIS HON'BLE BENCH DATED 10.10.2019 AS POINTED OUT ABOVE, IT IS HUMBLY PRAYED THAT THE SAID ORDER MAY PLEASE BE RECALLED AND THE APPEAL OF ASSESSEE MAY PLEASE BE RESTORED. 4. WE HAVE HEARD THE LD AR AS WELL AS THE LD. DR AND CAREFULLY PERUSED THE REASONS EXPLAINED BY THE ASSESSEE IN THE APPLICATION AS WELL AS IN SUPPORTING AFFIDAVIT. THE ASSESSEE HAS STATED ON OATH IN THE AFFIDAVIT THAT WEEKLY CAUSE LIST OF THE TRIBUNAL FOR THE WEEK 11.09.2019 TO 13.09.2019 AND 16.09.2019 TO 20.09.2019 WAS CIRCULATED 06/09/2019. IN THE SAID CAUSE-LIST, IT WAS CLEARLY DECLARED THAT, THE SMC BENCH SHALL NOT BE FUNCTIONING ON 11.09.2019 TO 13.09.2019. THEREFORE, THERE WAS NO REASON FOR THE COUNSEL TO APPEAR BEFORE THE TRIBUNAL IN VIEW OF THE ADVANCE INFORMATION CIRCULATED BY THE REGISTRY THAT THE BENCH SHALL NOT SIT ON THE DATE OF HEARING. HENCE, THE LD AR HAS PLEADED THAT THE IMPUGNED MA 31/JP/2020_ SHRI KIRODI MAL VS ITO 6 ORDER MAY BE RECALLED AND THE APPEAL OF THE ASSESSEE MAY BE DECIDED ON MERITS. 5. ON THE OTHER HAND, THE LD DR HAS OBJECTED TO THE MISC. APPLICATION FILED BY THE ASSESSEE AND SUBMITTED THAT DESPITE REPEATED NOTICES SENT TO THE ASSESSEE, NONE HAD APPEARED WHICH SHOWS THAT THE ASSESSEE WAS NOT TAKING THE PROCEEDINGS SERIOUSLY AFTER FILING THE PRESENT APPEAL. 6. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD WE ARE SATISFIED WITH THE EXPLANATION OF THE ASSESSEE FOR NON- APPEARANCE ON BEHALF OF THE ASSESSEE ON 13/09/2019. SINCE THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR NON-PROSECUTION AND WAS NOT DECIDED ON MERIT, ACCORDINGLY, IN THE INTEREST OF JUSTICE WE RECALL THE IMPUGNED ORDER AND RESTORE THE APPEAL OF THE ASSESSEE AT ITS ORIGINAL NUMBER AND STAGE. THE REGISTRY IS DIRECTED TO FIX THE APPEAL AS PER REGULAR HEARING AND IN THIS REGARD, NOTICE MAY BE SENT TO BOTH THE PARTIES AT THE EARLIEST. 7. IN THE RESULT, THIS MISC. APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND OCTOBER, 2020. SD/- SD/- FOE FLAG ;KNO LANHI XLKA (VIKRAM SINGH YADAV) (SANDEEP GOSAIN) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 22/10/2020 MA 31/JP/2020_ SHRI KIRODI MAL VS ITO 7 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI KIRODI MAL, ALWAR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD-1(1), ALWAR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (MA NO. 31/JP/2020) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR