Shri Shri Jagat Amba Sharika, Kashmir V. The Commissioner of Income Tax, Jammu & Kashmir

MA 34/ASR/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5295 (ITAT-AMRITSAR)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-03-2017
• Assessment Year: misc
• Appeal Filed On: 14-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH.T.S. KAPOOR, ACCOUNTANT MEMBE R AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER M. A. NOS.34 & 35 (ASR)/2016 ARISING OUT OF ITA NO.342 & 343(ASR)/2014 ASST. YEAR: SHRI SHRI JAGAT AMBA SHARIKA, CHAKRESHWARI ASTHAPAN, HARIPARBAT DEVI ANGAN, HAWAL, SRINAGAR, KASHMIR-110016 PAN NO.AAMTS1218G VS. COMMISSIONER OF INCOME TAX, JAMMU & KASHMIR, PANAMA CHOWK, AYAKAR BHAWAN, JAMMU, J&K-180004. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. UPENDER BHAT (CA) RESPONDENT BY: SH. RAHUL DHAWAN (DR) DATE OF HEARING: 03.03.2017 DATE OF PRONOU NCEMENT: 03.03.2017 ORDER PER T. S. KAPOOR (AM): THE PRESENT MISCELLANEOUS APPLICATIONS HAS BEEN FIL ED BY THE ASSESSEE FOR RECALLING THE EX-PARTE ORDER OF THE TRIBUNAL, DATED 17.03.2015, PASSED IN ITA NOS.342 & 343(ASR)/2014. 2. AT THE OUTSET, THE LD. COUNSEL CONTENDED THAT CA SE COULD NOT BE REPRESENTED ON 16.03.2015 BECAUSE ITS COUNSEL SH . S. K. KAUL HAD EXPIRED IN AUGUST, 2014 AND HE DID NOT HAD ANY OFFICE/JUNIOR TO ATTEND. IT WAS FURTHER SUBMITTED THAT SECRETARY OF THE ASSESSEE TRUST LIVED IN KASHMIR AND HIS AREA WHERE HE LIVED WAS DEVASTED BY FLOODS AND ACCORDINGLY NOBODY WAS ABLE TO BE REPRES ENT FOR HEARING MA NOS.34 & 35 (ASR)/2016 ARISING OUT OF ITA NOS.342 & 343(ASR)/2014 2 AT AMRITSAR ON THE STIPULATED DATE BEFORE THE HON'B LEBLE BENCH. THE ASSESSEE HAS ALSO FILED THE WRITTEN SUBMISSIONS MENTIONING THEREIN THE REASONS FOR NON ATTENDANCE, WHICH ARE R EPRODUCED AS UNDER: (I.) THAT THE NON-APPEARANCE/ON ATTENDANCE ON 16 TH MARCH, 2015 HAD NOT BEEN WILLFUL OR DELIBERATE (II) OUR COUNSEL LATE SHRI. S. K. KOUL WHO WAS LOOK ING AFTER THE CASE HAD EXPIRED IN AUG. 2014, AND DID NOT HAVE ANY OFFI CE/JUNIOR TO ATTEND AND ACCORDINGLY NOBODY WAS ABLE TO BE REPRES ENT FOR HEARING AT AMRITSAR ON THE STIPULATED DATE BEFORE THE HON'B LE. BENCH DUE TO THE EXTRAORDINARY SITUATION CREATED BY HIS DEATH. (III) THE ASSESSEE I.E. SECRETARY OF THE TRUST LIVE D IN SHIVPORA AREA OF KASHMIR WHICH WAS COMPLETELY DEVASTATED BY THE FLOO DS OF SEPT. 2014 AND HAD DESTROYED MOST OF THE RECORDS, HE WAS NOT AWARE OF THE DATES FIXED FOR HEARING AT AMRITSAR. (IV) THAT THE NOTICE OF HEARING/ORDER IN THE CASE H AVE NOT BEEN SERVED ON THE ASSESSEE COULD NOT ATTEND BEFORE THE HON'BLE COURT WHICH HAS CONTRIBUTED TO EX-PARTE DECISION WITH RES PECT TO THE APPEAL FILED BY US. THE ASSESSEE CAME TO KNOW ABOUT THE DISMISSAL ONLY AFTER HE MOVED AN APPLICATION FOR EARLY HEARING IN THE CASE. (V) THAT THE ASSESSEE SUBMITS THAT THERE HAS BEEN N O DELIBERATE ATTEMPT TO SUBVERT ANY PROCESS OF LAW BUT THE NON-A PPEARANCE ON THE STIPULATED DATE HAS BEEN NECESSITATED BY CIRCUM STANCES BEYOND OUR CONTROL. (VI) THAT SINCE THE APPEAL HAS BEEN FILED IN TIME A ND THE MERITS OF THE APPEAL DESERVE THAT THE ASSESSEE HAS A JUSTIFIA BLE CASE ON ITS MERITS AND THEREFORE NEEDS/REQUESTS A HEARING IN TH E INTEREST OF JUSTICE. (VII) THAT THE KIND ATTENTION OF THE HON'BLE BENCH IS INVITED TO THE DECIDED CASE OF CIT VS. MULTIPLAN INDIA LTD., 38-IT D-320 AS QUOTED BY YOUR HONORS WHILE DISMISSING THE APPEAL FOR WANT OF PROSECUTION, THE SAME DECIDED CASE HAS ALSO PROVIDED FOR THE REM EDY FOR RESTORATION OF APPEAL BY PREFERRING MISCELLANEOUS P ETITION EXPLAINING THE REASONS FOR FAILURE TO PURSUE THE APPEAL WHICH IN THE INSTANT CASE HAS BEEN IN LETTER AND SPIRIT FOLLOWED BY THE ASSESSEE WHILE PREFERRING THE PETITION SEEKING THE RESTORATION OF APPEAL BEFORE YOUR HONOUR. (B) THE ASSESSEE FURTHER PLACES HIS RELIANCE ON THE DEC IDED CASE LAWS OF RAINBOW AGRI IND. LTD. VS. ITAT (2004) 266 ITR 39 (BOM) WHEREIN IT HAS BEEN HELD THAT THE APPLICATION MADE FOR MA NOS.34 & 35 (ASR)/2016 ARISING OUT OF ITA NOS.342 & 343(ASR)/2014 3 RESTORATION OF APPEALS WHICH ARE DISMISSED EX-PARTE ON ACCOUNT OF NON-APPEARANCE, DESIRE TO BE LIBERALLY C ONSTRUED. (C) THE ASSESSEE ALSO PLACES HIS RELIANCE ON THE DECIDE D CASE OF CHEMIPOL VS. UOI 244 ELT 497 (BOM) WHEREIN IT HAS B EEN HELD THAT THE APPEAL SHOULD BE DECIDED ON MERITS RA THER THAN DISMISSING ON GROUND OF NON-APPEARANCE OF THE PARTY . ON THE BASIS OF ABOVE FACTS AND CIRCUMSTANCES AND THE DECIDED CASES, WE ARE OF A CONSIDERATE OPINION THAT IT WILL BE IN THE INTEREST OF NATURAL TO RECALL/REVISIT, THE EX-PARTE ORDER PASSE D BY YOUR HONOUR AND ALLOW AN ADEQUATE OPPORTUNITY TO THE ASSESSEE TO AP PEAR AND PRESENT HIS ARGUMENT (S) IN ORDER TO MEETE ENDS OF JUSTICE BY R ESTORING THE APPEAL FILED. IN VIEW OF THE ABOVE SUBMISSIONS, THE ASSESSEE PRAY ED THAT THE ORDER OF THE TRIBUNAL DATED 17.03.2015 MAY BE RECAL LED FOR FRESH ADJUDICATION ON MERITS, TO WHICH THE LEARNED DR DID NOT OPPOSE. 3. WE HAVE HEARD THE BOTH PARTIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. WE ARE SATISFIED WITH THE EXP LANATION OFFERED BY THE ASSESSEE FOR NON ATTENDANCE ON THE SCHEDULED DATE O F HEARING. THEREFORE, IN THE INTEREST OF JUSTICE, WE RECALL THE AFORESAID ORDER OF THE TRIBUNAL DATED 17.03.2015, AND DIRECT THE REGISTRY TO FIX TH E MAIN APPEAL FOR HEARING ON 27 TH APRIL, 2017. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS F ILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03.03.201 7. SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:03.03.2017 /GP/SR.PS . COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: MA NOS.34 & 35 (ASR)/2016 ARISING OUT OF ITA NOS.342 & 343(ASR)/2014 4 (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER