M/s Usaka Electricals, Solan V. ITO, Parwanoo

MA 35/CHANDI/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7887 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 28-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Section: 274

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B CHANDIGARH !, ' # $ . .. . & , '( # BEFORE: SMT. DIVA SINGH, JM & DR. B.R.R.KUMAR, AM M.A. 35/CHD/2019 IN ./ ITA NO. 767/CHD/2017 / ASSESSMENT YEAR : 2008-09 USAKA ELECTRICALS, PARWANOO, DISTT. SOLAN (HP). VS THE ITO, PARWANOO. ./ PAN NO: AABFU6800B / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI SURINDER BABBAR # ! ' / REVENUE BY : SHRI MANJIT SINGH,CIT-DR $ % ! &/ DATE OF HEARING : 05.08.2018 '()* ! &/ D ATE OF PRONOUNCEMENT : 06.08.2018 ')/ ORDER PER DIVA SINGH BY THE PRESENT MISCELLANEOUS APPLICATION FILED U/S 254 (2) OF THE INCOME TAX ACT,1961 ON 28.11.2018 THE ASSESS EE PRAYS FOR RECALL OF THE EX-PARTE ORDER DATED 08.10.2018 IN IT A NO. 767/CHD/2018 PERTAINING TO 2008-09 ASSESSMENT YEAR WHEREIN THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR NON-RE PRESENTATION. 2. THE LD. AR SUBMITTED THAT HE HAD BEEN ENGAGED BY THE ASSESSEE TO REPRESENT THE ASSESSEE IN THE PROCEEDIN GS BEFORE THE ITAT. RELYING UPON HIS AFFIDAVIT FILED, IT WAS STATED THA T ON THE SPECIFIC DATE I.E. ON 28.08.2018 HE COULD NOT APPEA R AS HE WAS SUFFERING FROM SEVERE DEHYDRATION AS A RESULT OF AC UTE M.A. 35/CHD/2019 IN ITA 767/CHD/2017 PAGE 2 OF 6 GASTROENTERITIS. ON ACCOUNT OF THIS FACT, IT WAS S UBMITTED THAT HE HAD BEEN ADVISED BED REST. NO ADJOURNMENT APPLICAT ION ON ACCOUNT OF THIS FACT, IT WAS SUBMITTED, WAS MOVED. THE LD. AR AGREED THAT IN THE FACTS OF THE PRESENT CASE, EARLI ER ALSO THE APPEAL OF THE ASSESSEE HAD BEEN DISMISSED FOR NON-R EPRESENTATION AND IT HAD COME UP FOR HEARING ONLY IN TERMS OF THE ORDER DATED 09.08.2018 IN M.A. 105/CHD/2018 WHEREIN THE EX-PART E ORDER WAS RECALLED IN ORDER TO GRANT AN OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. HOWEVER, PLEADING THAT UNFORTUNATELY FOR REASONS BEYOND HIS CONTROL HE COULD NOT YET AGAIN PARTICIPA TE IN THE PROCEEDINGS AND THE ASSESSEE FOR NO FAULT OF ITS OW N REMAINED UNREPRESENTED. 3. THE LD. CIT-DR CONSIDERING THE CONTENTS OF THE A PPLICATION SUPPORTED BY THE AFFIDAVIT OF THE C.A. SUBMITTED TH AT HE HAS NO OBJECTION IF THE ORDER IS RECALLED AND THE APPEAL O F THE ASSESSEE IS DIRECTED TO BE LISTED FOR HEARING ON MERITS AFTER H EARING THE PARTIES. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. A PERUSAL OF THE RECO RD SHOWS THAT : (A) THE ASSESSEE HAD FILED AN APPEAL ON 02.05.2017 ASSAILING THE CORRECTNESS OF THE ORDER OF CIT(A) FARIDABAD DATED 02.02.2017 ON VARIOUS GROUNDS; (B) ON ACCOUNT OF REMAINING UNREPR ESENTED ON 24.07.2017 I.E. THE DATE OF HEARING THE APPEAL OF THE ASSESSEE WAS DISMISSED; (C) THE ASSESSEE FILED A M.A. NO. 105/CHD/2018 M.A. 35/CHD/2019 IN ITA 767/CHD/2017 PAGE 3 OF 6 WHERE IT WAS PLEADED THAT THE ASSESSEE'S COUNSEL HA D STARTED FROM HIS OFFICE AT PARWANOO BUT WAS HELD UP IN TRAF FIC JAM NEAR KALKA-SHIMLA HIGHWAY TOLL PLAZA AND BY THE TIME HE REACHED THE ITAT, THE BENCH WAS OVER AND HIS CASE WAS DECIDED E X-PARTE. 4.1 CONSIDERING THESE ARGUMENTS THE EX-PARTE ORDER WAS RECALLED IN M.A. 105/CHD/2018 HOLDING THAT THE LACK OF REPRESENTATION BEFORE THE ITAT ON THE SCHEDULED DAT E HAS OCCURRED ON ACCOUNT OF REASONS BEYOND THE CONTROL O F THE ASSESSEE. HOLDING THAT THERE WAS SUFFICIENT CAUSE F OR THE ASSESSEE TO REMAIN UNREPRESENTED ON THE SPECIFIC DATE, THE E X-PARTE ORDER DATED 02.08.2017 WAS RECALLED. IN TERMS OF THE FOL LOWING DIRECTIONS THE NEXT DATE OF HEARING WAS FIXED : 5. AFTER CONSIDERING THE CONVENIENCE OF THE PARTIE S, THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR A HEARING ON MERIT ON 28.08.2 018 FOR WHICH DATE NO NOTICE SHALL BE ISSUED. SAID ORDER WAS PRONOUNCED IN THE O PEN COURT AT THE TIME OF HEARING ITSELF. (EMPHASIS SUPPLIED) 4.2 AS A RESULT OF THIS ORDER, THE APPEAL CAME UP FOR HEARING ON 28.08.2018. ON THE SAID DATE THE ASSESSEE AGAIN RE MAINED UNREPRESENTED RESULTING IN THE PASSING OF THE IMPUG NED ORDER. IN THE SAID FACTUAL BACKDROP, ASSESSEE HAS PLEADED AS UNDER : A. THAT THE CAPTIONED APPEAL WAS FILED BY THE APPELLA NT ON 02.05.2017 BEFORE THIS HON'BLE COURT (SMC BENCH) AND THE CASE WAS FIX ED FOR HEARING ON 24.07.2017 ON WHICH DATE COUNSEL OF THE APPELLANT N AMELY CA. SURINDER BABBAR, STARTED FROM HIS PARWANOO OFFICE (HIMACHAL PRADESH) FOR ATTENDING THE MATTER BUT WAS HELD UP IN TRAFFIC JAM NEAR KALKA-SHIMLA HI GHWAY TOLL PLAZA AND BY THE TIME HE REACHED THE HON'BLE ITAT (SMC BENCH) AT ABO UT 11.15 A.M. THE BENCH WAS OVER AND ON ENQUIRY HE CAME TO KNOW THAT THE AB OVE SAID CASE WAS DECIDED EX-PARTE. B. THAT THE ASSESSEE FILED A MISCELLANEOUS APPLICATIO N (M.A.NO.105.CHD/2018) STATING THE REASON FOR NON-RE PRESENTATION WITH A M.A. 35/CHD/2019 IN ITA 767/CHD/2017 PAGE 4 OF 6 PRAYER TO RECALL THE EX-PARTE ORDER IN ITA NO. 767/ CHD/2017 (A.Y. 2008-09) AND THE HON'BLE BENCH WHICH WAS KIND ENOUGH TO ACCE DE TO THE PRAYER OF THE ASSESSEE'S COUNSEL AND VIDE ORDER PRONOUNCED ON 09. 08.2018, MISCELLANEOUS APPLICATION OF THE ASSESSEE WAS ALLOWED WITH DIRECT IONS TO THE REGISTRY TO FIX THE APPEAL FOR HEARING ON MERIT ON 28.08.2018 FOR WHICH DATE NO NOTICE SHALL BE ISSUED. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. C) THAT ON 28.08.2018, THE ASSESSEE'S COUNSEL MR. SURI NDER BABBAR, FCA, WAS TO ATTEND THE CASE, BUT UNFORTUNATELY ON 27.07. 2018 HE SUFFERED FROM ACUTE GASTROENTERITIS WITH SEVER DEHYDRATION AND WAS ADVI SED REST AND TREATMENT ON 27/08/2018 AND 28/08/2018, WHICH CAUSED NON-REPRESE NTATION OF APPEAL ON THE APPOINTED DATE. THE MEDICAL CERTIFICATE OF THE COUN SEL ISSUED BY DHAWAN HOSPITAL IS ENCLOSED HEREWITH. 4.3 THESE FACTS HAVE BEEN STATED BY THE LD. AR ALSO ON AN AFFIDAVIT DATED 5 TH AUGUST, 2019 FILED IN THE COURT. THE RELEVANT PARAS ARE EXTRACTED HEREUNDER : 1 . THAT I AM A PRACTICING CHARTERED ACCOUNTANT AT PARW ANOO, DISTT. SOLAN (HP) AND ALL THE ACCOUNTS AND OTHER INCOME TAX MATT ERS OF M/S USAKA ELECTRICALS SITUATED AT PLOT NO, 30, SECTOR-1, PARWANOO, DISTT. SOLAN (HP) INCLUDING THE INCOME TAX APPEAL, I.E. ITA NO. 767/CHD/2017 WAS FI LED / SUBMITTED BY THE DEPONENT ON 02.05.2017 BEFORE THIS HON'BLE COURT (S MC BENCH) AND THE CASE WAS FIXED FOR HEARING ON 24.07.2017 ON WHICH DATE T HE UNDERSIGNED COULD NOT REPRESENT FOR BEING HELD UP IN TRAFFIC JAM NEAR KAL KA-SHIMLA HIGHWAY TOLL PLAZA ON MY WAY FROM PARWANOO TO CHANDIGARH AND BY THE TI ME I REACHED THE HON'BLE BENCH, I CAME TO KNOW THAT THE BENCH IS OVER AND TH E ABOVE SAID CASE HAS BEEN DECIDED EX-PARTE. 2. THAT THE ASSESSEE FILED A MISCELLANEOUS APPLICA TION (M.A.NO.105.CHD/2018) STATING THE REASON FOR NON- R EPRESENTATION WITH A PRAYER TO RECALL THE EX-PARTE ORDER IN ITA NO. 767/CHD/201 7 (A.Y. 2008-09) AND THE HON'BLE BENCH WHICH WAS KIND ENOUGH TO ACCEDE TO TH E PRAYER OF THE ASSESSEE'S COUNSEL AND VIDE ORDER PRONOUNCED ON 09.08.2018, MI SCELLANEOUS APPLICATION OF THE ASSESSEE WAS ALLOWED WITH DIRECTIONS TO THE RE GISTRY TO FIX THE APPEAL FOR HEARING ON MERIT ON 28.08.2018 FOR WHICH DATE NO NO TICE SHALL BE ISSUED. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF ON 09.08.2018. 3. THAT ON 28.08.2018, I WAS TO ATTEND THE CASE, BUT U NFORTUNATELY ON 27.08.2018. I SUFFERED FROM ACUTE GASTROENTERITIS W ITH SEVER DEHYDRATION AND WAS ADVISED REST AND TREATMENT ON 27/08/2018 AND 28 /08/2018, WHICH CAUSED NON-REPRESENTATION OF APPEAL ON THE APPOINTED DATE. MEDICAL CERTIFICATE OF DHAWAN HOSPITAL IS BEING FILED FOR YOUR KIND PERUSA L. (EMPHASIS SUPPLIED) M.A. 35/CHD/2019 IN ITA 767/CHD/2017 PAGE 5 OF 6 4.4 WE FURTHER NOTE THAT THESE AVERMENTS MADE ON AN AFFIDAVIT HAVE BEEN SUPPORTED BY THE FOLLOWING MEDICAL CERTIF ICATE FILED ON BEHALF OF THE ASSESSEE : DHAWAN HOSPITAL CENTRE FOR WEIGHT LOSS SURGERY, GI, CANCER & ADVANC E LAPAROSCOPIC SURGERY PLOT NO. 1, SECTOR 7, PANCHKULA- 134109 PH: 0172-4016314, EMAIL: [e-mail] TO WHOMSOEVER IT MAY CONCERN I, DR. RAKESH JASWAL, AFTER A PERSONAL CAREFUL EXAM INATION OF THE CASE HERBY CERTIFY THAT MR. SURINDER BABBAR, 61 YEARS / MALE, WHOSE SIGNATURE IS GIVEN BELOW, WAS SUFFERING FROM ACUTE GASTROENTERIT IS WITH SEVERE DEHYDRATION AND WAS ADVISED REST AND TREATMENT ON 27/08/2018 AN D 28/08/2018. NOW HE IS FIT TO RESUME HIS DUTY W.E.F. 29/08/2018. SD/- SD/- SIGNATURE OF PATIENT SIGNATURE OF DOCTOR DATE 29/08/2018 MEDICAL SUP ERINTENDENT MBBS, MIMA, MBA REGD. NO. 20258 5. CONSIDERING THE ABOVE FACTS AND CIRCUMSTANCES AS ARGUED WHICH HAVE NOT BEEN REBUTTED OR SHOWN TO BE INCORRE CT, WE ACCEPT THE EXPLANATION OFFERED AS BONAFIDE AND TRUE . EEXERCISING THE POWERS AS VESTED IN US BY PROVISO TO RULE 24 OF THE ITAT RULES 1963, THE ORDER DATED 08.10.2018 IS RECALLED. SUPPORT IS DRAWN FROM THE DECISION OF THE HON'BLE DELHI HIGH C OURT IN THE CASE OF CIT VS ANSAL HOUSING CONSTRUCTION LTD. 274 ITR 131 (DEL). 6. REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARI NG ON MERITS ON 16.09.2019, A DATE CONVENIENT TO THE PARTIES. F OR THE SAID DATE, IT IS MADE CLEAR NO SPECIFIC NOTICE SHALL BE ISSUED TO THE PARTIES AS THE DATE WAS ANNOUNCED IN THE PRESENCE O F THE PARTIES M.A. 35/CHD/2019 IN ITA 767/CHD/2017 PAGE 6 OF 6 AT THE TIME OF HEARING ITSELF. SAID ORDER WAS PRONO UNCED AT THE TIME OF HEARING ITSELF. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06.08.2019. SD/- SD/- ( . .. . & ) ( ! ) (DR. B.R.R. KUMAR) (DIVA SINGH) '( #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER + , (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. $ / / CIT 4. $ / ()/ THE CIT(A) 5. -23 4, & 4, 67839/ DR, ITAT, CHANDIGARH 6. 38 :%/ GUARD FILE (+ $ / BY ORDER, ; #/ ASSISTANT REGISTRAR ITAT,CHANDIGARH.