Shri Jagdish Govindbhai Amin, Baroda V. The CIT-I, Baroda

MA 345/AHD/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2252 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 04-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R R MAKWANA
• Assessee Lawyers: MILIND MEHTA
• Keywords: Opportunity of being heard
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) (THROUGH VIRTUAL COURT) M.A. NO: 345/AHD/2019 (IN ITA NO. 1603/AHD/2014) (ASSESSMENT YEAR: 2009-10) SHRI JAGDISH GOVINDBHAI AMIN, M/S. ALPHA PETROLEUM, NEAR KALALI CROSSING, KALALI- VADODARA-390012 PAN NO. ACIPA7480L V/S THE COMMISSIONER OF INCOME TAX-1, VADODARA (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MILIND MEHTA, A.R. RESPONDENT BY : SHRI R. R. MAKWANA, SR. D.R. ( )/ ORDER DATE OF HEARING : 20 -11-2020 DATE OF PRONOUNCEMENT : 24 -11-2020 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. BY VIRTUE OF THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE U/S 254(2) OF THE ACT, THE ASSESSEE INTENDS TO RECALL THE IMPUGNED EX PARTE ORDER DT. 12-02- 2019 PASSED BY THIS TRIBUNAL. M.A. NO. 345/AHD/2019 . A.Y. 2009-10 2 2. THE LD. AR BEFORE US SUBMITTED AS UNDER: 1. THE APPLICANT HEREIN WAS APPELLANT IN ITA NO. 1603/AHD/2014. 2. THE ABOVE REFERRED MATTER CAME BEFORE THE 'C BENCH' COMPRISING OF HON'BLE PRADIP KUMAR KEDIA, AM AND HON'BLE SHRI MAHAVIR PRASAD, JM. THE HON'BLE BENCH PASSED AN EX-PARTE ORDER ON 12.02.2019. THE ORDER WAS SERVED ON THE APPLICANT ON 10-06-2019. THE PRESENT APPLICATION IS FILED BY THE APPLICANT REQUESTING THE HON'BLE BENCH FOR RECALLING THE ORDER DATED 10-06-2019. 3. THE HEARING OF THE AFOREMENTIONED MATTER WAS FIXED ON 30-01-2019. ON THE SAID DATE, THE AR OF THE APPLICANT WAS ALSO REQUIRED TO APPEAR BEFORE 'D BENCH' OF THE ITAT. AHMEDABAD IN THE CASE OF FAG BEARINGS INDIA LTD. IT IS SUBMITTED THAT THE MATTERS BEFORE THE 'D BENCH' WERE HIGH QUANTUM AND LONG PENDING MATTERS. SOME OF THE MATERS PERTAINED AY 2004-05 AND WERE PENDING SINCE 2007 I.E. FOR 12 YEARS. FURTHER THE SAID MATTERS WERE HIGH QUANTUM MATTERS HAVING AGGREGATE QUANTUM OF ALMOST RS. 125 CRORES. COPY OF THE CAUSE LIST SHOWING THE MATTERS LISTED BEFORE THE 'D BENCH' ON 30-01-2019 IS ATTACHED AS ANNCXIIRE-1. 4. ON THE PERUSAL OF THE CAUSE LIST, IT CAN BE NOTICED THAT THE MATTERS LISTED BEFORE 'D BENCH' WERE ON FIRST ON THE BOARD AND MOREOVER BEING HIGH QUANTUM AND LONG PENDING, THE AR OF THE APPLICANT WAS REQUIRED TO APPEAR BEFORE THE 'D BENCH' BEFORE APPEARING IN THE ABOVE CAPTIONED MATTER. THE AR ENSURED THAT IN 'C BENCH' WHEN THE AFOREMENTIONED MATTER IS CALLED, A REQUEST FOR PUSHING BACK THE MATTER IS MADE. HOWEVER, WHEN THE MATTER WAS CALLED, THE REQUEST FOR PUSHING BACK THE MATTER COULD NOT BE MADE AND THE HON'BLE BENCH PASSED AN EX PARTE ORDER IN THE AFOREMENTIONED MATTER. 5. THE HON'BLE BENCH MAY APPRECIATE THE FACT THAT THE AR COULD NOT ATTEND THE HEARING FOR REASONS BEYOND HIS CONTROL. THE NON-ATTENDANCE WAS NOT INTENTIONAL BUT WAS CIRCUMSTANTIAL. SINCE THERE IS SUFFICIENT CAUSE FOR NON- APPEARANCE WE SUBMIT THAT THE HON'BLE BENCH MAY PLEASE RECALL THE ORDER INVOKING RULE 24 SUPRA. 6. THE APPLICANT REQUESTS THE HON'BLE BENCH TO RECALL THE ORDER APPLYING RULE 24 OF THE INCOME-TAX (APPELLATE TRIBUNAL) RULES, 1963. RULE 24 IS REPRODUCED HEREIN BELOW FOR READY REFERENCE. 'HEARING OF APPEAL EX PARTS FOR DEFAULT BY THE APPELLANT. 24. WHERE, ON THE DAY FIXED FOR HEARING OR ON ANY OTHER DATE TO WHICH THE HEARING MAY BE ADJOURNED, THE APPELLANT DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORISED REPRESENTATIVE WHEN THE APPEAL IS CALLED ON FOR HEARING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE RESPONDENT: M.A. NO. 345/AHD/2019 . A.Y. 2009-10 3 PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVIDED ABOVE AND THE APPELLANT APPEARS AFTERWARDS AND SATISFIES THE TRIBUNAL THAT [HERE WAS SUFFICIENT CAUSE FOR HIS NON-APPEARANCE, WHEN THE APPEAL WAS CALLED ON FOR HEARING, THE TRIBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE EX PARTS ORDER AND RESTORING THE APPEAL. ' 7. ON THE PERUSAL OF THE ABOVE, IT CAN BE APPRECIATED THAT IN THE CASE OF THE APPLICANT, THERE WAS SUFFICIENT CAUSE FOR NON-APPEARANCE BY THE AR BEFORE THE HON'BLE BENCH AND AS PER RULE 24, IT IS REQUESTED TO RESTORE THE APPEAL. IT WAS ONLY ON ACCOUNT OF THE FACT THAT THE AR WAS APPEARING BEFORE THE 'D BENCH', HE COULD NOT APPEAR BEFORE THE HON'BLE BENCH IN THE AFOREMENTIONED MATTER. THE NON-APPEARANCE WAS NOT INTENTIONAL BUT WAS CIRCUMSTANTIAL. CONSIDERING THE SAID FACTS, WE REQUEST THE HON'BLE BENCH TO RECALL THE AFOREMENTIONED MATTERS. 8. IN VIEW THEREOF, IT MAY BE. IN FITNESS OF THINGS THAT THE ORDER MAY BE RECALLED AND FRESH ORDER MAY BE PASSED AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPLICANT. 9. THE FEES REQUIRED TO BE PAID HAS BEEN PAID AND CHALLAN EVIDENCING THE PAYMENT OF RS. 50/- FOR THE FEES IS ENCLOSED HEREWITH FOR YOUR RECORD. IN VIEW OF THE ABOVE SUBMISSIONS YOUR APPLICANT MOST RESPECTFULLY PRAYS AS UNDER:- 1. THE ORDER OF THE HON'BLE INCOME TAX APPELLATE TRIBUNAL DATED 12.02.2019 MAY PLEASE BE RECALLED AND THE APPEAL BE DECIDED AFRESH AFTER GIVING AN OPPORTUNITY OF BEING HEARD IN THE MATTER. 2. SUCH OTHER ORDER AS THE HON'BLE TRIBUNAL MAY DEEM FIT IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT APPLICATION 3. ON THE OTHER HAND THE LD. DR RAISED NO OBJECTION IF THE MATTER IS RECALLED FOR FRESH ADJUDICATION AS PER THE PROVISION OF LAW. 4. HEARD RIVAL SUBMISSIONS AND PERUSED THE RECORD. ON PERUSAL OF THE ORDER DT. 12-02-2019, WE FIND THAT IN SPITE OF SERVICE OF NOTICES BY THE REGISTRY NEITHER ANY ONE APPEARED NOR THERE WAS ANY ADJOURNMENT APPLICATION FILED ON BEHALF OF ASSESSEE FOR THE HEARING ON 12-02-2019. THUS, FOLLOWING THE VARIOUS DECISIONS IN THE CASES OF MULTIPLAN INDIA (P) LTD REPORTED IN 38 ITD 320 (DEL), HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. M.A. NO. 345/AHD/2019 . A.Y. 2009-10 4 CWT REPORTED IN 223 ITR 480(MP) THE TRIBUNAL DISMISSED THE APPEAL OF ASSESSEE BY PASSING EX PARTE ORDER FOR NON PROSECUTION. WE FIND THAT THERE WAS SUFFICIENT REASON FOR THE ASSESSEE IN NOT APPEARING BEFORE THE TRIBUNAL ON THE SAID DATE OF HEARING [12-02-2019]. THEREFORE, IN VIEW OF SUBMISSION OF ASSESSEE WE RECALL THE ORDER DATED 12-02-2019 BY ALLOWING THIS MISC. APPLICATION FILED BY THE ASSESSEE. 5. NEXT DATE OF HEARING IN THIS MATTER IS 18/01/2021 AND SAME HAS BEEN COMMUNICATED TO BOTH THE PARTIES AND NO SEPARATE NOTICE WILL BE SENT TO ANY OF THE PARTY. 6. IN THE RESULT, THE MISC. APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 24 - 11- 2020 SD/- SD/- (PRADIP KUMAR KEDIA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 24/11/2020 RAJESH COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD