Appeal Details
Counselvise Citation
[2011] 123 COUNSELVISE.COM (IT) 6386 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
11 month(s) 19 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
13-05-2011
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
H
Assessment Year
2000-2001
Appeal Filed On
25-05-2010
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI (FRIDAY) BEFORE SHRI G.E. VEERABHADRAPPA: VICE PRESIDENT AND SHRI R.P. TOLANI : JUDICIAL MEMBER M.A. NOS. 332, 333, 334, 335, 336 & 337/DEL/2010 ( IN ITA NOS. 1113, 1114, 1115, 1116, 1117 & 1118 /DEL/08 ) ASSTT. YRS: 1999-2000 TO 2004-05 ASHOK KUMAR JAIN, VS. ACIT, RANGE-II, PROP. JAINSON INTERNATIONAL EXPORTS, MORADABAD (U .P.) OPP. EIDGAH GROUND, EIDGAH ROAD, MORADABAD. ( APPLICANT ) ( RESPONDENT ) APPLICANT BY : SHRI K. SAMPATH ADV. RESPONDENT BY: SHRI PEEYUSH SONKAR SR. DR O R D E R PER R.P. TOLANI, J.M : THESE MISC. APPLICATIONS ARE FILED BY THE ASSESSEE; BRIEF FACTS ARE THAT THE ASSESSEES GROUP OF APPEALS WAS POSTED FOR HEAR ING BEFORE ITAT ON 22-1- 2009. WHEN THE MATTER WAS CALLED FOR HEARING BY THE BENCH, IT WAS PRAYED THAT THE ARGUING COUNSEL SHRI K. SAMPATH BEING BUSY IN OTHER COURTROOM, THE MATTER MAY EITHER BE ADJOURNED OR PASSED OVER. THE BENCH, HOWEVER, HEARD THE MATTER EX PARTE. THEREAFTER, COUNSEL MET THE LEARNED JM, IT WAS DIRECTED THAT THE ASSESSEE MAY FILE WRITTEN SUBMISS IONS WITHIN A WEEK, WHICH MA 332 TO 337/DEL/10 ASHOK KUMAR JAIN VS. ACIT 2 WILL BE CONSIDERED WHILE DECIDING THE APPEALS. ASSE SSEE FILED WRITTEN SUBMISSIONS WITH THE BENCH CLERK ON 10-2-99. 2. IT TURNED OUT THAT BENCH CLERK KEPT THE WRITTEN SUBMISSIONS IN A SEPARATE FOLDER AND WERE NOT PLACE BEFORE LEARNED J M. THE APPEALS WERE CONSEQUENTLY DECIDED EX PARTE VIDE CONSOLIDATED OR DER DATED 19-2-2009. THE ASSESSEE FILED MA NOS. 277 TO 282/DEL/09 FOR RECA LL OF THE EX PARTE ORDER DATED 19-2-09. THESE MISC. APPLICATIONS WERE REJEC TED BY THE ITAT VIDE ORDER DATED 13-11-2009. NOW THESE M.AS ARE FILED WHICH ARE BEFORE US. 3. LEARNED COUNSEL CONTENDS THAT: (I) AT THE TIME OF FIRST ORDER ITSELF WHEN THE ASSESSEE S COUNSEL WAS ARGUING IN ANOTHER COURT, BENCH SHOULD NOT HAVE HE ARD THE APPEALS EX PARTE. REQUEST FOR EITHER PASS OVER OR ADJOURNIN G THE MATTER SHOULD NOT HAVE BEEN REJECTED. (II) THOUGH TIME FOR ONE WEEK WAS GIVEN TO FILE WRITTEN SUBMISSIONS, THE LEARNED JUDICIAL MEMBER (JM IN SHORT) PROCEE DED ON LEAVE. THE ASSESSEE UNDER THIS BELIEF FILED THE WRITTEN SU BMISSIONS ON 10- 2-2009, WHICH ARE ON RECORD. (III) LEARNED JM WAS ON LEAVE FROM 2-2-09 TO 12-2-09, WHI CH IS NOT DISPUTED. THE WRITTEN SUBMISSIONS FILED ON 10-2-09, WHICH, DUE TO MISTAKE OF THE BENCH CLERK, WERE NOT PLACED BEFORE LEARNED JM. THE SITUATION WAS BEYOND THE CONTROL OF ASSESSEE. (IV) THE WRITTEN SUBMISSIONS WERE FILED ON 10-2-09 AND E X PARTE ORDER IS PASSED ON 19-2-09 I.E. NINE DAYS AFTER FILING OF THE WRITTEN SUBMISSIONS, SUCH EX PARTE ORDER SUFFERS FROM THIS LEGAL INFIRMITY. MA 332 TO 337/DEL/10 ASHOK KUMAR JAIN VS. ACIT 3 (V) RELIANCE IS PLACED ON THE RATIO OF DECISION OF HON BLE SUPREME COURT IN THE CASE OF MST. KATIJI 167 ITR 471 FOR TH E PROPOSITION THAT WHEN TECHNICAL CONSIDERATIONS ARE PITTED AGAIN ST THE CAUSE OF SUBSTANTIAL JUSTICE THE CAUSE OF SUBSTANTIAL SHOULD PREVAIL. (VI) SUCH MISTAKE SHOULD NOT COME IN THE WAY OF DISPENS ATION OF DUE JUSTICE WHICH TO THE ASSESSEE. THE MISTAKE IS APPAR ENT AND NEEDS TO BE RECTIFIED. (VII) GREAT PREJUDICE HAS BEEN CAUSED AND THE PRINCIPLES OF NATURAL JUSTICE STAND DENIED, RESULTING IN ASSESSEES APPEA LS BEING DISMISSED EX PARTE BY THIS MISTAKE, WHICH NEEDS TO BE CORRECTED. IT IS PLEADED THAT THE IMPUGNED EX PARTE ORDER DATE D 19-2-2009 AND CONSEQUENTIAL M.A. ORDER DATED 13-11-2009 MAY BE RE CALLED AS THE MISTAKE IS APPARENT RESULTING IN DENIAL OF DUE JUSTICE. 4. ON THE OTHER HAND, LEARNED DR RELIES ON THE ORDE R OF THE ITAT AND CONTENDS THAT ASSESSEES MISC. APPLICATIONS HAVE AL READY BEEN DISMISSED VIDE ORDER DATED 13-11-2009, THEREFORE, THESE MISC. APPL ICATIONS ARE NOT MAINTAINABLE. 5. LEARNED COUNSEL FOR THE ASSESSEE, IN REPLY CONT ENDS THAT EARLIER M.A. DATED 13-11-2009 ALSO SUFFER FROM MISTAKE INASMUCH AS IT HAS BEEN CONCLUDED THAT THE ASSESSEE WAS NOT INTERESTED IN FILING THE WRITTEN SUBMISSIONS WHEREAS THE FACT OF THE MATTER IS THAT WRITTEN SUBMISSIONS WERE FILED ON RECORD BEFORE PASSING OF THE IMPUGNED ORDE R, WHICH REMAINED TO BE TAKEN INTO CONSIDERATION. THEREFORE, THE PRESUMPTI ON THAT ASSESSEE WAS NOT MA 332 TO 337/DEL/10 ASHOK KUMAR JAIN VS. ACIT 4 INTERESTED IN FILING WRITTEN SUBMISSIONS IS MISTAKE N. IT HAS NOT BEEN DISPUTED THAT THE ORIGINAL ORDER OF THE ITAT ON MERITS WAS P ASSED AFTER FILING OF THE WRITTEN SUBMISSIONS DATED 10-2-2009, THEREFORE, THE PRESENT MAS RAISE A MISTAKE IN THE ORIGINAL ORDER AND M.A. ORDER, WHI CH DEAL WITH THE SAME SUBJECT MATTER AND ISSUE. IN THESE CIRCUMSTANCES, D ISPENSATION OF JUSTICE CANNOT BE DENIED TO ASSESSEE. THEREFORE, THESE M.AS ARE MAINTAINABLE. 6. WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE GONE TH ROUGH THE ENTIRE MATERIAL AVAILABLE ON RECORD. THE FACTS HAVE BEEN N ARRATED ABOVE. IT HAS NOT BEEN DISPUTED THAT THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE ON 10-2- 2009, WERE ON RECORD OF THE TRIBUNAL BEFORE PASS ING OF THE EX PARTE ORDER DATED 19-2-2009. THE PASSING OF ORDER WITHOUT TAKI NG INTO CONSIDERATION THOSE WRITTEN SUBMISSIONS AMOUNTS AN MISTAKE APPARE NT FROM RECORD. THE ISSUE WHETHER IT WAS THE MISTAKE OF BENCH CLERK OR THE COUNSEL, IS IRRELEVANT AS FAR AS THE NON-HEARING OF ASSESSEES SIDE IS CON CERNED. BESIDES IT CANNOT BE CONCLUDED THAT ASSESSEE WAS NOT INTERESTED IN FI LING THE WRITTEN SUBMISSIONS, WHICH IN FACT STAND FILED BEFORE PASSI NG OF ORDERS. 7. IN VIEW OF THE FACT THAT ASSESSEES WRITTEN SUBM ISSIONS WERE FILED BEFORE PASSING OF THE EX PARTE ORDERS, WE RECALL TH E IMPUGNED ORDER DATED 19-2-2009 AND M.A. ORDER DATED 13-11-09, PASSED IN THE ABOVE CAPTIONED APPEALS AND RESTORE THE SAME TO THEIR ORIGINAL NU MBER TO BE HEARD AFTER MA 332 TO 337/DEL/10 ASHOK KUMAR JAIN VS. ACIT 5 GIVING THE ASSESSEE OPPORTUNITY OF BEING HEARD. THE REGISTRY IS DIRECTED TO FIX THE APPEALS FOR HEARING IN DUE COURSE BY ISSUIN G NOTICES OF HEARING TO BOTH THE PARTIES. WE ORDER ACCORDINGLY. 8. IN THE RESULT, ASSESSEES MISC. APPLICATIONS ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 13-05-2011. SD/- SD/- ( G.E. VEERABHADRAPPA ) ( R.P. TOLANI ) VICE PRESIDENT JUDICIAL MEMBER DATED: 13-05-2011. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR
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