Shri Dipak J. Shah, Baroda V. DCIT, Central Circle-2, Baroda

MA 367/AHD/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3654 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 03-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Keywords: Opportunity of being heard
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER) (THROUGH VIRTUAL COURT) M.A. NO: 367/AHD/2019 (IN ITA NO. 637/AHD/2018) (ASSESSMENT YEAR: 2012-13) DIPAK J SHAH, 11, CHAROTAR HOUSING SOCIETY, OLD PADRA ROAD, BARODA V/S DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, BARODA (APPELLANT) (RESPONDENT) PAN: AGTPS 7948 E APPELLANT BY : SMT. AARTI SHAH, A.R. RESPONDENT BY : SHRI LALIT P. JAIN, SR. D.R. ( )/ ORDER DATE OF HEARING : 06 -11-2020 DATE OF PRONOUNCEMENT : 09 -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. 15-10- 2019 PASSED BY THIS TRIBUNAL. M.A. NO. 367AHD/2019 . A.Y. 2012-13 2 2. THE LD. AR BEFORE US SUBMITTED AS UNDER: 1. THE ABOVE STATED APPEAL BEING ITANO.637/AHD/2018 OF THE APPELLANT CAME TO BE DISPOSED OFF BY THE HON'BLE TRIBUNAL, 'B' BENCH, AHMEDABAD BY ORDER DATED 15/10/2019. COPY OF THE SAID ORDER IS ENCLOSED FOR READY REFERENCE AT ANNEXURE-A. 2. THE HON'BLE TRIBUNAL, WHILE DISMISSING THE APPEAL, NOTED IN ITS ORDER AS UNDER : '2. ON THE DATE OF HEARING I.E. ON 14-10-2019, NONE APPEARED ON BEHALF OF ASSESSEE NOR AN ADJOURNMENT APPLICATION WAS FILED ON BEHALF OF THE ASSESSES THROUGH THE NOTICE FIXING THE DATE OF HEARING WAS SERVED ON ASSESSEE, WHICH INDICATES THAT THE ASSESSE IS NOT INTERESTED IN PROSECUTING THE APPEAL, THEREFORE, FALLOWING THE DECISION OF ITAT DELHI BENCH IN THE CASE OF CIT VS. MULTIPLAN INDIA (PVT.) LTD, 38 ITD 320 (DEL) WE DISMISS THE APPEAL OF THE ASSESSE IN LIMINE. THE ASSESSE SHALL HOWEVER BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALLING OF THIS ORDER, IF PREVENTED BY SUFFICIENT CAUSE FOR NON-APPEARANCE ON THE DATE OF HEARING, 3. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISMISSED. 3. THE APPELLANT BEGS TO SUBMIT THAT HE HAS NOT RECEIVED THE NOTICE OF HEARING FIXED ON 14-10- 2019 FROM THE HON'BLE ITAT AND THEREFORE HE WAS NOT AWARE ABOUT THE DATE OF HEARING AND THEREFORE HE COULD NOT INSTRUCT HIS CHARTERED ACCOUNTANT TO ATTEND THE HEARING AND CONSEQUENTLY THE APPEAL HAS BEEN DISMISSED BY HON'BLE ITAT ON 15.10.2019 DUE TO NON- APPEARANCE. 4. YOUR APPELLANT, THEREFORE, HUMBLY PRAYS THAT, UNDER THE ABOVE STATED FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, THE ABOVE STATED ORDER PASSED BY THE HON'BLE TRIBUNAL ON 15.10.2019, MAY BE KINDLY RECALLED AND THE MATTER BE DECIDED AFRESH AFTER GRANTING THE APPELLANT, A PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD FOR WHICH ACT OF KINDNESS THE APPELLANT FOR EVER SHALL REMAIN GRATEFUL TO YOUR HONOURS. 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. 15-10-2019, 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 15-10-2019. 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. CWT REPORTED IN 223 ITR 480(MP) THE TRIBUNAL DISMISSED THE APPEAL OF M.A. NO. 367AHD/2019 . A.Y. 2012-13 3 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 [15-10- 2019]. THEREFORE, IN VIEW OF SUBMISSION OF ASSESSEE WE RECALL THE ORDER DATED 15-10-2019 BY ALLOWING THIS MISC. APPLICATION FILED BY THE ASSESSEE. 5. NEXT DATE OF HEARING IN THIS MATTER IS 26/11/2020 AND SAME HAS BEEN COMMUNICATED TO BOTH THE PARTIES AND NO SEPARATE NOTICE WILL BE SENT TO ANY OF THE PARTIES. 6. IN THE RESULT, THE MISC. APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 09- 11- 2020 SD/- SD/- (AMARJIT SINGH) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 09 /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