B DEVAHIE, CHENNAI V. ACIT, CENTRAL CIR-3(3), CHENNAI

MA 35/CHNY/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5395 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-11-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 07-12-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 07-02-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay

Judgement Text

आयकर अपीलीय अिधकरण, ‘ए’ Ɋायपीठ, चेɄई IN THE INCOME-TAX APPELLATE TRIBUNAL ‘A’ BENCH, CHENNAI ŵी वी दुगाŊ राव Ɋाियक सद˟ एवं ŵी मंजुनाथा, जी., लेखा सद˟ के समƗ Before Shri V. Durga Rao, Judicial Member & Shri Manjunatha, G., Accountant Member M.P. 35/Chny/2019 [Arising out of M.P. No. 178/Chny/2018 and M.P. No. 303/Chny/2017 ] [In I.T.A. No.760/Chny/2017] िनधाŊरण वषŊ/Assessment Year: 1997-98 Smt. G. Malliga, No. 13, 6 th Street, Lake Area, Nungambakkam, Chennai 600 034. [PAN:AFFPM4644A] Vs. The Income Tax Officer, Non Corporate Ward 3(4), Chennai 600 034. (Petitioner) (ŮȑथŎ/Respondent) Petitioner by : Ms. Sowjanya, Advocate ŮȑथŎ की ओर से/Respondent by : Shri P. Sajit Kumar, JCIT सुनवाई की तारीख/ Date of hearing : 10.11.2023 घोषणा की तारीख /Date of Pronouncement : 10.11.2023 आदेश /O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: By means of present Miscellaneous Petition, the assessee seeks to recall the order passed by the Tribunal in I.T.A. No. 760/Chny/2017 dated 20.07.2018 relevant to the assessment year 1997-98. In the petition, by relying on various case law, it was prayed for recalling the exparte order of the Tribunal for adjudication. 2. By referring to the written submissions filed by the Department and by relying upon the judgement of the Hon’ble Madras High Court in the M.P. No.35/Chny/19 2 case of CIT vs. Panchu Arunachalam 323 ITR 31, the ld. DR has submitted that the ITAT has dismissed the appeal vide order dated 01.08.2017 in I.T.A. No. 760/Chny/2017 for want of prosecution. The above exparte order of the ITAT has been recalled vide MP No. 303/Mds/2017 dated 02.02.2018 and appeal has been restored for adjudication. It was further submission that again, vide appeal order dated 20.07.2018, the Tribunal dismissed the appeal of the assessee since the assessee could not rectify the defects notified by the ITAT which includes delay of 316 days in filing the appeal before the Tribunal as no petition for condonation of delay has been filed. The ld. DR has further submitted that the assessee has filed a petition for recalling the appeal order dated 20.07.2018 and vide order in M.P. No. 178/Chny/2018 dated 02.11.2018 since the assessee could not file petition for condonation of delay of 316 days in filing the appeal. It was further submitted that again the assessee has filed a petition for recalling the appeal order dated 20.07.2018 cannot be entertained in view of the decision in the case of CIT v. Panchu Arunachalam (supra) and the third MP filed by the assessee is liable to be dismissed. 3. Per contra, the ld. Counsel for the assessee has submitted that the assessee’s authorized representative who was taking care of assessee’s M.P. No.35/Chny/19 3 tax matters Shri N. Devanathan, Advocate could not put his appearance due to ill health when the main was taken up for hearing nor rectified the defects notified by the Tribunal and subsequently expired after prolonged ailment or brought to the notice of the assessee. After the demise of Shri N. Devanathan, the assessee came to know that there is defect in filing the main appeal. 3.1 By referring the affidavit for condonation of delay, the ld. Counsel for the assessee has submitted that the assessee was diagnosed with throat cancer and had intensive survey and have been undergoing treatment at her native place i.e., Bhuvanagiri near Chidambaram, thereby, the assessee could not able file the condonation petition for the delay in filing the appeal. By rectifying the defect i.e., filing petition for condonation of delay, the ld. Counsel for the assessee prayed to afford an opportunity of being heard to the assessee to substantiate her case before the Tribunal. 4. We have heard both the sides, perused the orders of the Tribunal dated 01.08.2017 and 20.07.2018. The appeal and MPs filed by the assessee were dismissed for want of rectification of defects notified by the ITAT. The contention of the assessee is that the ld. AR of the assessee Shri N. Devanathan was under prolonged medical treatment M.P. No.35/Chny/19 4 and subsequently passed away without handing over of relevant appeal papers to the assessee, the assessee was unable to rectify the defects. It was also contended that the assessee was taking treatment for throat cancer at her native place, the assessee was not aware of the defect notified by the ITAT. By filing condonation petition for the delay in support of medical treatment details towards cancer, the ld. Counsel has prayed that the assessee may be afforded an opportunity to substantiate her case before the Tribunal. Considering the facts and circumstances of the case and to meet the ends of natural justice and moreover, the defect notified by the ITAT was rectified, we are of the opinion that the assessee shall be given an opportunity to substantiate her case before the Tribunal. Accordingly, we recall the exparte order of the Tribunal in I.T.A. No. 760/Chny/2017 dated 20.07.2018 and post the appeal for hearing on 28.11.2023. Having pronounced the date of hearing in the open Court, no separate notice would be served on both the parties. 5. In the result, the MP filed by the assessee is allowed. Order pronounced in the open Court on 10 th November, 2023 at Chennai. Sd/- Sd/- (MANJUNATHA, G.) ACCOUNTANT MEMBER (V. DURGA RAO) JUDICIAL MEMBER Chennai, Dated, 10.11.2023 M.P. No.35/Chny/19 5 Vm/- आदेश की Ůितिलिप अŤेिषत/Copy to: 1. अपीलाथŎ/Appellant, 2.ŮȑथŎ/ Respondent, 3. आयकर आयुƅ/CIT, 4. िवभागीय Ůितिनिध/DR & 5. गाडŊ फाईल/GF.