M/s Skyscraper Projects Pvt. Ltd., Kolkata V. DCIT, CIR-10(2), KOLKATA, Kolkata

MA 37/KOL/2023

AI Insights

The case involves M/s. Skyscraper Projects Pvt. Limited, the applicant, who filed a Miscellaneous Application under section 254(1) of the Income Tax Act, 1961, against an ex-parte order favoring the Revenue in a previous appeal. The Tribunal had initially dismissed the Revenue's appeal due to low tax effect, but later, due to non-appearance of the assessee on subsequent dates, an ex-parte order was passed in favor of the Revenue. The assessee contended that they were not informed of the subsequent hearings, leading to their non-appearance. The Tribunal, considering the provisions of Rule 24 of the ITAT Rules and the circumstances presented, decided to recall the ex-parte order and restore the appeal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 129851 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-09-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 27-07-2023
• Assessment Year: 2007-2008
• Appeal Filed On: 22-06-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect; Set aside

Judgement Text

M.A. No. 37/KOL/2023 (in ITA No.2439/KOL/2019) (A.Y. 2007-2008) M/s. Skyscraper Projects Pvt. Limited 1 IN THE INCOME TAX APPELLATE TRIBUNAL, ‘C’ BENCH, KOLKATA Before Dr. Manish Borad, Accountant Member & Shri Sonjoy Sarma, Judicial Member M.A. No. 37/KOL/2023 (in I.T.A. No. 2439/KOL/2019) Assessment Year: 2007-2008 M/s. Skyscraper Projects Pvt. Limited,.......Applicant 53B, Townshend Road, Kolkata-700025 [PAN: AAJCS1656G] -Vs.- Deputy Commissioner of Income Tax,........Respondent Circle-10(2), Kolkata, Aayakar Bhawan, 3 rd Floor, P-7, Chowringhee Square, Kolkata-700069 Appearances by: Shri Anuj Mussadi, A.R., appeared on behalf of the applicant Shri B.K. Singh, JCIT, Sr. D.R. appeared on behalf of the Revenue Date of concluding the hearing : July 28, 2023 Date of pronouncing the order : September 11, 2023 O R D E R Per Dr. Manish Borad, Accountant Member:- This Miscellaneous Application at the instance of assessee under section 254(1) of the Income Tax Act, M.A. No. 37/KOL/2023 (in ITA No.2439/KOL/2019) (A.Y. 2007-2008) M/s. Skyscraper Projects Pvt. Limited 2 1961 is directed against the order of this Tribunal in ITA No. 2439/KOL/2019 dated 7 th February, 2023. 2. The grievance of the assessee is that the case was heard on 26.07.2022 and it was pleaded in the Court that the appeal of the Revenue is liable to be dismissed on account of low tax effect but thereafter no information was received regarding subsequent date of hearing fixed for the purpose of clarification and finally Tribunal has passed the ex-parte order on 07.02.2023 allowing the Revenue’s appeal. The prayer of the assessee is that the impugned order may be recalled and opportunity may be granted to the assessee for arguing the case on merit. 3. On the other hand, ld. D.R. opposed the request made by the ld. Counsel for the assessee. 4. We have heard the rival contentions and perused the relevant record placed before us. We observe that the Revenue’s appeal was heard on 26.07.2022 and during the course of hearing, it was indicated by the assessee that the appeal of the Revenue deserves to be dismissed on account of low tax effect. The case was assigned to the Judicial Member Shri Sonjoy Sarma, but thereafter the case was fixed for clarification on 27.09.2022, but none appeared on behalf of the assessee on 27.09.2022. However, order was reserved to be pronounced. M.A. No. 37/KOL/2023 (in ITA No.2439/KOL/2019) (A.Y. 2007-2008) M/s. Skyscraper Projects Pvt. Limited 3 Again on 19.01.2023, the case was fixed for clarification and the date of hearing was fixed on 31.01.2023, but again the assessee failed to appear on that given date. It was not discernable from the record that whether notices of hearing fixing the dates of hearing on 19.01.2023 and 27.09.2022 were actually served on the assessee. We further observe that on the date of last hearing on 31.01.2023, the appeal was heard in the presence of ld. D.R. and thereafter vide order dated 07.02.2023, the appeal of the Revenue was disposed of allowing in favour of the Revenue. 5. After going through these series of events, prima facie, we find merit in the contention of the ld. Counsel for the assessee, since on the date of hearing i.e. on 26.07.2022, the assessee was under impression that the appeal of the Revenue will be dismissed on account of low tax effect and on the subsequent instance regarding fixing the case for clarification, the assessee was not aware. Even though the impugned order was passed on merit, but considering the provisions of Rule 24, which provides for the hearing of appeal ex-parte for default by the appellant but as per the proviso to Rule 24 of the ITAT Rules, when the Tribunal has ex-parte disposed of the appeal on merits and thereafter the appellant appears, the Tribunal shall set aside the ex-parte order and restore the appeal if sufficient cause is shown. We are of the view that the assessee’s case falls under the proviso to Rule 24 of the ITAT Rules as the assessee was prevented from sufficient cause for not appearing on the date of hearing and we, M.A. No. 37/KOL/2023 (in ITA No.2439/KOL/2019) (A.Y. 2007-2008) M/s. Skyscraper Projects Pvt. Limited 4 therefore, recall the impugned order and direct the registry to fix the appeal at its original number and inform both the parties. 6. In the result, the Miscellaneous Application of the assessee is allowed. Order pronounced in the open Court on 11 th September, 2023. Sd/- Sd/- (Sonjoy Sarma) (Manish Borad) Judicial Member Accountant Member Kolkata, the 11 th day of September, 2023 Copies to :(1) M/s. Skyscraper Projects Pvt. Limited, 53B, Townshend Road, Kolkata-700025 (2) Deputy Commissioner of Income Tax, Circle-10(2), Kolkata, Aayakar Bhawan, 3 r d Floor, P-7, Chowringhee Square, Kolkata-700069 (3) Commissioner of Income Tax (Appeals)-4, Kolkata; (4) Commissioner of Income Tax- ; (5) The Departmental Representative (6) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.