M/s. Krishan Kumar Sud, Pathankot V. The DCIT, Pathankot

MA 32/ASR/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0158 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 26-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

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.32(ASR)/2013 (ARISING OUT OF I.T.A. NO.281(ASR)/2012) ASSESSMENT YEAR:2006-07 PAN :AAEFK4903A M/S. KRISHAN KUMAR SUD, CONTRACTOR, VS. DY.COMMR. O F INCOME TAX, MIRPUR COLONY, PATHANKOT. CIRCLE VI, PATHANKO T. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.SUDHIR SEHGAL, RESPONDENT BY:SH.TARSEM LAL, DR DATE OF HEARING:10/05/2013 DATE OF PRONOUNCEMENT:13/05/2013 ORDER PER BENCH ; THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE ARI SES OUT OF THE ORDER OF THE ITAT, AMRITSAR BENCH, DATED 30.11.2012 PASSE D IN ITA NO.281(ASR)/2012 FOR THE ASSESSMENT YEAR 2006-07. T HE ASSESSEE HAS SUBMITTED THE FOLLOWING MISCELLANEOUS APPLICATION, WHICH IS FOR THE SAKE OF CLARITY IS REPRODUCED AS UNDER: 1. THAT IT IS VERY HUMBLY SUBMITTED THAT THE DEPA RTMENT HAD FILED AN APPEAL BEFORE THE HONBLE BENCH BEARING ITA NO.281/ASR/2012 FOR THE ASSESSMENT YEAR 2006-07. MA NO.32(ASR)/2013 2 2. THAT THE SAID APPEAL WAS FIXED FOR HEARING ON 29.1 1.2012 AND ON THE SAID DATE, SH. ROHIT KAPOOR, CHARTERED ACCOU NTANT HAD FILED AN APPLICATION FOR ADJOURNMENT IN THE ABOVE S AID CASE AND WHICH WAS SUBMITTED TO THE HONBLE BENCH AT THE TIM E OF HEARING. 3. THAT THE HONBLE BENCH DID NOT CONSIDER THE ADJO URNMENT APPLICATION AS FILED BY THE APPELLANTS COUNSEL AN D PROCEEDED TO DECIDE THE CASE EX-PARTE. 4. THAT SINCE THE ORDER HAS BEEN PASSED EX-PARTE WI THOUT GIVING A REASONABLE OPPORTUNITY OF BEING HEARD, WHICH THE H ONBLE BENCH WAS SUPPOSED TO GRANT AND, THUS THERE HAS BE EN MISCARRIAGE OF JUSTICE. 5. THAT SINCE THE APPELLANT HAD APPROACHED THE HONBLE BENCH FOR ADJOURNMENT AND EVEN THE COUNSEL OF THE ASSESSEE WA S NOT CARRYING ANY FILED AND ONLY A REQUEST WAS MADE TO A DJOURN THE CASE AND, THUS, THE MISCARRIAGE OF JUSTICE HAS OCCU RRED OF NOT AFFORDING THE REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 6. THAT THE HONBLE BENCH HAS DECIDED THE APPEAL BY MAINLY RELYING UPON THE FINDING OF THE AO AND WITHOUT CO NSIDERING THE FACT THAT THE APPELLANT COUNSEL HAD APPROACHED THE HONBLE BENCH WITH A REQUEST TO ADJOURN THE CASE AND INSTE AD THE HONBLE BENCH HAD PROCEEDED TO DECIDE THE CASE BY HEARING THE DEPARTMENTAL REPRESENTATIVE ONLY AND, THUS, THE SU FFICIENT AND REASONABLE OPPORTUNITY HAS NOT BEEN GIVEN TO THE A PPELLANT. 7. THAT THE APPELLANT COULD NOT REBUT ANYTHING DUE TO THE ABOVE SAID REASONS AND THEREFORE, IT IS PRAYED THAT THE ORDER AS PASSED BY THE HONBLE BENCH IN ITA NO.281(ASR)/2012 FOR A .Y. 2006- 07 MAY, PLEASE BE RECALLED AND FRESH OPPORTUNITY O F BEING HEARD BE GIVEN TO THE APPELLANT. 2. THE LD. COUNSEL FOR THE ASSESSEE, SH. SUDHIR SEH GAL ARGUED THAT HIS JUNIOR SH. ROHIT KAPOOR, CA HAD APPEARED BEFORE THE BENCH FOR ADJOURNMENT OF THE MATTER AND THE ADJOURNMENT APPL ICATION IS ON RECORD OF MA NO.32(ASR)/2013 3 THE BENCH, IN WHICH PRAY FOR ADJOURNMENT WAS MADE, SINCE THE ASSESSEE WISHES TO FILE THE PAPER BOOK AND THE ADJOURNMENT WAS SOUGHT FOR 22 ND JANUARY, 2013. THE ADJOURNMENT APPLICATION WAS NOT CONSIDERED BY THE BENCH BY MISTAKE AND THE CASE WAS DECIDED EX-PARTE BY MARKING PRESENCE OF MR. ROHIT KAPOOR, CA, WHO APPEARED ONLY FOR ADJOURN MENT. MR. ROHIT KAPOOR HAS NOT AT ALL REPRESENTED THE MATTER SINCE HE DID NOT HAVE EVEN THE FILES OF THE ASSESSEE WITH HIM AND NO ARGUMENTS AT ALL HAVE BEEN MADE BY HIM, WHICH IS APPARENT FROM THE ORDER ITSELF. MR. SUDHIR SEHGAL, THEREFORE, REQUESTED TO RECALL THE SAID ORDER OF THE TRIBUNAL, WHICH REMAINED UNREPRESENTED, IN THE INTEREST OF JUSTICE. 3. THE LD. DR. MR. TARSEM LAL, ON THE OTHER HAND, A RGUED THAT IN THE ORDER, NAME OF SH. ROHIT KAPOOR, CA, AS RESPONDENT APPEARS AND THEREFORE, EVEN IF, THE ADJOURNMENT APPLICATION HAS NOT BEEN D EALT BY THE BENCH, THE SCOPE OF SECTION 254(2) IS LIMITED TO MISTAKE APPAR ENT FROM RECORD, WHICH THE LD. COUNSEL FOR THE ASSESSEE HAS NOT POINTED OUT. T HEREFORE, HE PRAYED TO REJECT THE MISCELLANEOUS APPLICATION FILED BY THE A SSESSEE. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THERE IS NO DISPUTE TO THE FACT THAT AT THE FACE OF THE ORDER OF ITAT, AMRITSAR BENCH, IN ITA NO.281(ASR)/2012, DATED 30.11.2012, T HE REPRESENTATION HAS BEEN MENTIONED ON BEHALF OF THE RESPONDENT BY SH.RO HIT KAPOOR, CA. ALSO, THERE IS NO MISTAKE POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE, MR. MA NO.32(ASR)/2013 4 SUDHIR SEHGAL IN THE SAID ORDER. BUT AT THE SAME TI ME, IT IS ALSO NOT DISPUTED AND AS PER OUR RECORD, THERE IS AN APPLICATION FOR ADJOURNMENT WHICH REMAINED IN THE FILE AND COULD NOT BE DEALT BY THE BENCH BY MISTAKE. THE SAID APPLICATION FOR THE SAKE OF CLARITY IS REPRODU CED AS UNDER: NOVEMBER 29,2012 THE HONBLE MEMBERS, INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH, C.R.BUILDING, MAQBOOL ROAD, AMRITSAR. SIR, REG: SH.KEWAL KRISHAN SOOD SUB: REQUEST FOR ADJOURNMENT. I HAVE TO VERY HUMBLY SUMIT THAT THE DATE OF HEARI NG IN THE ABOVE SAID CASE HAS BEEN FIXED FOR TODAY BEFORE THIS HONBLE BENCH. IN THIS REGARD, IT IS SUBMITTED THAT THE ABOVE SAI D CASE HAS ASSIGNED TO ME ONLY ON DAY BEFORE YESTERDAY. WE WISH TO FILE P APER BOOK IN THE ABOVE SAID CASE BEFORE THE HONBLE BENCH AND AS SU CH IT IS, THEREFORE, VERY HUMBLY REQUESTED THAT THE CASE MAY, PLEASE, B E ADJOURNED AFTER 22 ND OF JANUARY, 2013 AND OBLIGE. THE NECESSARY POWER OF ATTORNEY IS BEING ENCLOSED HEREWITH. THANKING YOU, SD/- AUTHORIZED SIGNATORY 4.1. AS THE ADJOURNMENT APPLICATION HAS NOT BEEN DE ALT BY THE BENCH IN OUR ORDER IN ITA NO.281(ASR)/2012 DATED 30.11.2012 AND IT HAS BEEN DECIDED WITHOUT HEARING. MR. ROHIT KAPOOR,CA WHO HAD APPEA RED FOR ADJOURNMENT HAS WRONGLY BEEN MENTIONED AS HAVING MADE THE REPRE SENTATION AND THERE IS MA NO.32(ASR)/2013 5 NO REPRESENTATION OR ARGUMENT FOUND IN OUR ORDER IN ITA NO.281(ASR)/2012, DATED 30.11.2012 ON BEHALF OF THE ASSESSEE. THUS, W E ARE OF THE VIEW THAT IN THE ABSENCE OF CONSIDERING THE ADJOURNMENT APPLICAT ION AND WITHOUT ANY REPRESENTATION OF THE ASSESSEE, THE MATTER HAS BEEN DECIDED BY US VIDE ORDER DATED 30.11.2012 AND IN THE INTEREST OF NATURAL JUS TICE WE RECALL OUR ORDER DATED 30.11.2012 PASSED IN ITA NO.281(ASR)/2012 AND DIRECT THE REGISTRY TO FIX THE APPEAL FOR 13 TH JUNE, 2013 AND INFORM THE PARTIES. 5. IN THE RESULT, THE M.A.NO.32(ASR)/2013 FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13TH MAY, 2013. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 13TH MAY, 2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. KRISHAN KUMAR SUD CONTRACTOR, PAT HANKOT 2. THE DCIT, CIR.VI,PATHANKOT 3. THE CIT(A), JAMMU 4. THE CIT, JAMMU. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.