Boob Pradip Kisanlal, Nashik V. Assistant Commissioner of Income-tax, Circle -1, Nashik

MA 35/PUN/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0670 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-09-2018
• Assessment Year: 2004-2005
• Appeal Filed On: 18-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE , , , BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM . / MA NO S. 31 TO 36 /PUN/201 8 (ARISING OUT OF ITA NO S. 1302 TO 1307 /PUN/201 4 ) / ASSESSMENT YEAR S : 20 02 - 03, 2003 - 04 & 2004 - 05 SHRI BOOB PRADIP KISANLAL, PLOT NO. P - 8, MIDC, AMBAD, NASHIK 422010 PAN : ABRPB9542Q ....... / APP LICANT / V/S. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, NASHIK / RESPONDENT ASSESSEE BY : S HRI P RAMOD SHINGTE REVENUE BY : SHRI SUDHENDU DAS / DATE OF HEARING : 28 - 09 - 2018 / DATE OF PRONOUNCEMENT : 28 - 0 9 - 201 8 / ORDER PER VIKAS AWASTHY, JM : TH ESE SIX MISCELLANEOUS APPLICATION S HA VE BEEN FILED BY THE ASSESSEE / APPLICANT FOR RECALLING THE ORDER OF TRIBUNAL IN ITA NOS. 1302 TO 1307/PUN/2014 FOR THE ASSESSMENT YEARS 2002 - 03 TO 2004 - 05. THE 2 MA NOS. 31 TO 36/PUN/2018 TRIBUNAL VIDE COMPOSITE ORDER DISPOS ED OF ASSESSEES TH REE APPEALS AGAINST QUANTUM ADDITIONS CONFIRMED BY COMMISSIONER OF INCOME TAX (APPEALS) AND THE THREE APPEALS CONFIRMING LEVY OF PENALTY U/S. 271(1)(C) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ). 2. SHRI PRAMOD SHINGTE APPEARING ON BEHALF OF THE ASSESSEE/APPLICANT SUBMITTED THAT THE QUANTUM APPEALS OF THE ASSESSEE AS WELL AS APPEALS ASSAILING LEVY OF PENALTY U/S. 271(1)(C) WERE DISMISSED BY THE TRIBUNAL VIDE ORDER DATED 15 - 01 - 2016 IN AN EX - PARTE PROCE EDINGS. THE NOTICE OF APPEALS WAS NOT RECEIVED BY THE ASSESSEE PERSONALLY. THEREFORE, THE ASSESSEE WAS NOT AWARE OF THE DATE OF HEARING OF THE APPEALS BEFORE THE TRIBUNAL. IN THE ABSENCE OF ANY INFORMATION REGARDING HEARING OF APPEALS, THE ASSESSEE COUL D NOT COMMUNICATE THE DATE OF HEARING BEFORE THE TRIBUNAL TO HIS COUNSEL/AUTHORIZED REPRESENTATIVE AT PUNE. THE LD. AR SUBMITTED THAT THE ASSESSEE BE GRANTED AN OPPORTUNITY OF HEARING AS THE ASSESSEE HAS PRIMA - FACIE GOOD CASE IN HIS FAVOUR. 3. SHRI SUD HENDU DAS REPRESENTING THE DEPARTMENT SUBMITTED THAT THE ORDER OF TRIBUNAL IS WELL REASONED. THE LD. DR POINTED THAT IN PARA 2.1 OF THE ORDER , THE TRIBUNAL HAS OBSERVED THAT THE NOTICE OF HEARING WAS SENT TO THE ASSESSEE ON 27 - 08 - 2015 FOR 15 - 10 - 2015. SIN CE, NOBODY APPEARED ON THAT DAY, FRESH NOTICE WAS ISSUED TO THE ASSESSEE THROUGH RPAD FOR 12 - 01 - 2016. DESPITE SERVICE OF NOTICE NONE APPEARED ON BEHALF OF THE ASSESSEE. THE CONDUCT OF THE ASSESSEE SHOWS THAT HE IS NOT SERIOUS IN PURSUING HIS APPEALS. TH E LD. DR CONTENDED THAT LAW DOES NOT COME TO THE RESCUE OF THOSE WHO ARE NOT VIGILANT TO DEFEND THEIR CASE. 3 MA NOS. 31 TO 36/PUN/2018 4. BOTH SIDES HEARD. THE ASSESSEE THROUGH THESE MISCELLANEOUS APPLICATIONS IS SEEKING RECALLING OF THE ORDER DATED 15 - 01 - 2016 VIDE WHICH THE APPE ALS OF ASSESSEE IN ITA NOS. 1302 TO 1307/PUN/2014 WERE DISMISSED IN AN EX - PARTE PROCEEDINGS. A PERUSAL OF THE CASE FILE SHOWS THAT NOTICE OF APPEALS WERE SENT TO THE ASSESSEE ON 21 - 09 - 2015 FOR 15 - 10 - 2015 WHICH WAS DULY RECEIVED BY THE ASSESSEE ON 28 - 09 - 20 15. SINCE, NONE APPEARED ON BEHALF OF THE ASSESSEE ON 15 - 10 - 2015, FRESH NOTICE WAS ISSUED TO THE ASSESSEE ON 16 - 10 - 2015 FOR 12 - 01 - 2016. THE ACKNOWLEDGEMENT OF THE NOTICE AVAILABLE ON FILE INDICATES THAT THE SAID NOTICE WAS ALSO DULY SERVED ON THE ASSESSE E. DESPITE SERVICE OF NOTICES, NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE DATE FIXED FOR HEARING I.E. 15 - 01 - 2016. THE NEGLIGENCE ON THE PART OF THE ASSESSEE IN NOT PURSUING HIS APPEALS BEFORE THE TRIBUNAL IN DILIGENT MANNER IS QUITE EVIDENT. AT THE SAME TIME WE ARE CONSCIOUS OF THE PRINCIPLE OF NATURAL JUSTICE, AUDI ALTERAM PARTEM. THE LIS SHOULD NOT BE TERMINATED WITHOUT AFFORDING OPPORTUNITY OF HEARING , WHERE STAKES ARE HIGH AND ARGUABLE POINTS OF FACTS AND/OR LAW ARE INVOLVED. TAKING INTO CONSIDERATION TOTALITY OF FACTS WE ARE OF CONSIDERED VIEW THAT EX - PARTE ORDER DATED 15 - 01 - 2016 DESERVES TO BE RECALLED . HOWEVER, THE ASSESSEE HAS TO BEAR THE COST OF NEGLIGENCE. THE ORDER DATED 15 - 01 - 2016 IS RECALLED SUBJECT TO PAYMENT OF COST RS. 1 0,000/ - BY THE ASSESSEE. THE COST SHALL BE PAID BY THE ASSESSEE IN ACCORDANCE WITH RULE 32A(2) OF THE INCOME TAX APPELLATE TRIBUNAL RULE, 1963 WITHIN A PERIOD OF 30 DAYS FROM THE DATE OF THIS ORDER. THE ASSESSEE SHALL FURNISH THE PROOF OF PAYMENT OF COST TO TH E REGISTRY WITHIN 7 DAYS FROM THE DATE OF SUCH DEPOSIT. THERE AFTER, THE REGISTRY IS DIRECTED TO RESTORE THE APPEALS AT THEIR ORIGINAL NUMBER AND LIST THE SAME FOR HEARING ON 28 - 11 - 2018. 4 MA NOS. 31 TO 36/PUN/2018 5. SINCE, THE DATE OF HEARING OF APPEALS HAS BEEN INFORMED TO BOTH THE SIDES PRESENT IN COURT, ISSUANCE OF SEPARATE NOTICE TO THE PARTIES IS DISPENSED WITH. 6. IN THE RESULT, MISCELLANEOUS APPLICATION S FILED BY ASSESSEE ARE ALLOWED IN THE TERMS AFORESAID. ORDER PRONOUNCED IN OPEN COURT AFTER HEARING OF THE MISCELLAN EOUS APPLICATION ON FRIDAY, THE 28 TH DAY OF SEPTEMBER, 2018. SD/ - SD/ - ( / ANIL CHATURVEDI ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 28 TH SEPTEMBER, 2018 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - I , NASHIK 4. / THE CIT - I, NASHIK 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE