Sh. Dinesh Chand Gupta, Agra V. Dy.C.I.T., Circle-4(1), Agra

MA 34/AGR/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9885 (ITAT-AGRA)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-03-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 22-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C AGARWAL
• Assessee Lawyers: KK MISHRA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER M.A. NO. 34/AGRA/2012 (IN ITA NO. 169/AGRA/ 2012) ASSESSMENT YEAR 2003-04 SHRI DINESH CHAND GUPTA VS. DY.COMMISSIONER OF IN COME TAX PROP. SHRI SHAMBHU DAL MILL, CIRCLE-4(1) AGRA LANE GAUSHALA. BELANGANJ, AGRA (PAN ABWPG 7619 N) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.C. AGARWAL, ADVOCAT E ASSESSEE BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 08.03.2013 DATE OF PRONOUNCEMENT : 15.03.2013 ORDER PER A.L. GEHLOT,ACCOUNTANT MEMBER: EARLIER APPEAL OF ASSESSEE WAS DISMISSED VIDE ORD ER DATED 14.09.2012 EX-PARTE AS ASSESSEE REFUSED TO ACCEPT N OTICE AS PER REPORT OF POSTAL AUTHORITIES. M.A NO.34/AGRA/2012 IN ITA NO.169/AGRA/2012 A.Y. 2003-04 2 2 IN THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IT IS STATED THAT THE ASSESSEE AT THE RELEVANT TIME IN THE 1 ST FORTNIGHT MONTH OF JULY 2012 WHEN THE POSTAL AUTHORITY MIGHT HAVE VISITED THE PR EMISES OF THE ASSESSEE FOR SERVICE OF NOTICE, THE ASSESSEE WAS OUT OF STATION TO KOLKATA TO SEE HIS AILING SISTER-IN-LAW WHO WAS SERIOUSLY ILL AND LATER ON DI ED. HE STAYED THERE FOR A WEEK ON ACCOUNT OF WHICH THE HOUSE WAS CLOSED AND N OBODY WAS AT HOME. IT IS FURTHER SUBMITTED THAT IT MAY BE POSSIBLE THAT TIME ON VISIT BY POSTAL AUTHORITIES THE CHOWKIDAR OR NEIGHBOR MIGHT HAVE RE FUSED TO TAKE SERVICES, SINCE THE ASSESSEE WAS NOT AVAILABLE THERE. IN FACT , THE ASSESSEE WAS AND IS VERY INTERESTED IN PROSECUTING. IT HAS ALSO BEEN STATED THAT THE ASSESSEE HAS ALREADY BEEN CLOSED BUSINESS LONG BACK ON ACCOUNT OF FIRE I N FACTORY WITHOUT INSURANCE AND ASSESSEE AT PRESENT IS VERY MUCH DISTURBED. IN SUPPORT OF MISCELLANEOUS APPLICATION, THE ASSESSEE FURNISHED THE AFFIDAVIT W HEREIN HE HAS STATED THE FACTS AS DISCUSSED ABOVE. 3. THE LEARNED AUTHORISED REPRESENTATIVE MADE HIS SUBMISSION ON THE BASIS OF MISCELLANEOUS APPLICATION AND SUBMITTE D THAT THE STATEMENT ON OATH OF THE DEFENDANT REMAINED UNCONTROVERTED WHICH AMOUNTS TO SUFFICIENT GROUND FOR SETTING ASIDE THE EX-PARTE ASSESSMENT. M.A NO.34/AGRA/2012 IN ITA NO.169/AGRA/2012 A.Y. 2003-04 3 4. THE LEARNED AUTHORISED REPRESENTATIVE IN SUPPOR T OF HIS CONTENTION RELIED UPON THE JUDGMENTS OF MEGHJI KANJU PATEL VS. KUNDANMAN CHAMANLAL MEHTANI REPORTED IN AIR 1968 BOMBAY HIGH COURT 387, (1968) 70 BOMLR 253 AND JAGAT RAM KHULLAR AND ANOTHER VS. BATTU MAL REPORTED IN AIR 1976 DELHI 111. 5. IT HAS ALSO BEEN SUBMITTED BY THE AUTHORISED RE PRESENTATIVE THAT THE ASSESSEE MADE A COMPLAINT TO S.S.P. OF POST, SA NJAY PLACE, AGRA VIDE LETTER DATED 25.02.2013 REGARDING REFUSAL OF NOTICE BY THE ASSESSEE. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT STILL THE ASSESSEE DID NOT RECEIVE ANY REPLY FROM THE POSTAL AUTHORITY. THE LEARNED D.R. S UBMITTED THAT THE ITAT HAS DECIDED THE APPEAL ON MERIT, THEREFORE, IT CANNOT B E RECALLED UNDER SECTION 254(2) OF THE ACT. 6. THE LEARNED D.R. RELIED UPON A JUDGMENT OF ALLA HABAD HIGH COURT IN THE CASE OF DEVENDER PRAKASH VS. INCOME TAX OFFICER, BAREILLY REPORTED IN 72 ITR 151 AND SUBMITTED THAT THERE IS NO MISTAKE IN THE ORDER OF THE ITAT, THEREFORE, THE SAME CANNOT BE RECALLED. M.A NO.34/AGRA/2012 IN ITA NO.169/AGRA/2012 A.Y. 2003-04 4 7. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF TH E PARTIES AND RECORDS PERUSED. SECTION 254(2) OF ACT PROVIDES THA T THE ITAT MAY WITH THE VIEW TO RECTIFY THE MISTAKE APPARENT FROM THE RECOR D, IMPUGNED ANY ORDER PASSED BY IT SUB SECTION (1) 254, AND MAKE SUCH AME NDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE. 8. RULE 24 OF INCOME TAX (APPELLATE TRIBUNAL), RU LES, 1963 PROVIDES FOR HEARING OF APPEAL EX-PARTE FOR DEFAULT BY THE APPELLANT. THE SAID RULE READS AS:- HEARINGOF APPEAL EX PARTE FOR DEFAULT BY THE APPELL ANT. 24. WHERE, ON THE DAY FIXED FOR HEARING OR ON ANY OTHER DATE TO WHICH THE HEARING AUTHORIZED REPRESENTATIVE WHEN THE APPEAL I S CALLED ON FOR HEARING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AF TER HEARING THE RESPONDENT: PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVID ED ABOVE AND THE APPELLANT APPEARS AFTERWARDS AND STATISTICS THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON-APPEARANCE, WHEN THE A PPEAL WAS CALLED ON FOR HEARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING A SIDE THE EX PARTE ORDER AND RESTORING THE APPEAL.] 9. IN THE LIGHT OF ABOVE DISCUSSION, UNDER THE FA CTS OF THE CASE, WE NOTICE THAT THE ASSESSEE HAS DEMONSTRATED THAT H E IS INTERESTED IN PROSECUTION OF THE APPEAL. HE HAS ALSO MADE EFFORTS TO ASCERTAIN THE CORRECT FACT REGARDING REFUSED REMARK GIVEN BY THE POSTAL AUTHORITY. M.A NO.34/AGRA/2012 IN ITA NO.169/AGRA/2012 A.Y. 2003-04 5 10. THE BOMBAY HIGH COURT IN THE CASE OF MEGHJI KANJU PATEL VS. KUNDANMAN CHAMANLAL MEHTANI (SUPRA) HELD THAT THE STATEMENT ON OATH OF THE DEFENDANT REMAINED UNCONTROVERTED, U NDER THAT CIRCUMSTANCES THERE WAS SUFFICIENT GROUND FOR SETTING ASIDE THE E X-PARTE DECREE. THE ASSESSEE FURNISHED THE AFFIDAVIT IN WRITING THE CIRCUMSTANCE S FOR NON-APPEARANCE ON THE DATE OF HEARING OF THE APPEAL AND THOSE FACTS HAVE NOT BEEN COTROVERTED BY THE REVENUE. 11. CONSIDERING ABOVE DISCUSSION, WE FIND THAT TH AT THERE WAS SUFFICIENT CAUSE FOR THE ASSESSEE FOR HIS NON-APPEA RANCE, WHEN THE APPEAL WAS CALLED FOR HEARING , THE ASSESSEE HAS SATISFIED THE CONDITIONS LAID DOWN IN RULE 24 OF APPELLATE TRIBUNAL, RULE. IN THE LIGHT OF THE FACT, WE RECALL OUR ORDER DATED 14.09.2012 PASSED IN ITA NO. 169/AGRA/2012, A .Y. 2003-04. 12. THE REGISTRY IS DIRECTED TO FIX THE APPEAL FO R HEARING ON 29.05.2013. 13 IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTA NT MEMBER AMIT/ M.A NO.34/AGRA/2012 IN ITA NO.169/AGRA/2012 A.Y. 2003-04 6 COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, AGRA TRUE COPY