M/s. J.R. Steel Industries, Bhavnagar V. The Asstt. Commissioner of Income Tax, Circel-2, Bhavnagar

MA 38/AHD/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5637 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 25-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ABHIMANUSINGH BHATTI
• Keywords: Reasonable cause

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER MISC. APPLICATION NO.38/AHD/2017 IN ITA.NO.2197/AHD/2013 / ASSTT.YEAR : 2009-10 M/S.J.R. STEEL INDUSTRIES L T D. LOKHAND BAZAR, TOP NAKA NR. BANK OF BARODA BHAVNAGAR PAN : AACFJ 3441 J VS ACIT, CIR.2 BHAVNAGAR. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI ABHIMANUSINGH BHATTI, AR REVENUE BY : MS.MEENAKSHI DOHARE , SR.DR / DATE OF HEARING : 19/01/2018 / DATE OF PRONOUNCEMENT: 19/01/2018 !'/ O R D E R PRESENT MISC. APPLICATION IS DIRECTED AT THE INSTAN CE OF ASSESSEE SEEKING RECALL OF EX PARTE ORDER OF TRIBUNAL DATED 15.07.2016 IN ITA NO.2197 /AHD/2013. 2. WE HAVE HEARD BOTH THE PARTIES. RELEVANT PLEADI NG MADE BY THE ASSESSEE IN THE APPLICATION READS AS UNDER: (A) THAT THE APPELLANT WANTED TO PURSUE THE APPEAL BECAUSE HE HAD FILED AN APPEAL AGAINST THE ORDER OF THE ID. C.I.T. (APPEALS) AFTER PAYMENT OF RS.10,000/- AS APPEAL FEE AND HAD ALSO A PPOINTED M/S BHATI & ASSOCIATES, ADVOCATES, AHMEDABAD TO REPRESE NT THEIR MATTER BEFORE THE KON'BLE TRIBUNAL (THROUGH THEIR CHARTERE D ACCOUNTANT SHRI PREM GOPLANI). MA NO.38/AHD/2017 2 (B) THAT THE FIRST NOTICE OF HEARING WAS RECEIVED B Y THE APPELLANT ON 16.06.2016 AND IMMEDIATELY IT WAS FORWARDED BY HIM TO THE OFFICE OF HIS CHARTERED ACCOUNTANT SHRI PREMBHAI GOPLANI FOR ONWARD TRANSMISSION. HOWEVER, IT APPEARS THAT THE STAFF ME MBER OF SHRI GOPLANI HAD FAILED TO PLACE THE SAID NOTICE BEFORE THE CHARTERED ACCOUNTANT IN TIME AND HENCE THE SAME COULD NOT BE FORWARDED ONWARDS TO THE OFFICE OF M/S BHATI & ASSOCIATES, AD VOCATES. HENCE, NEITHER THE AUTHORISED REPRESENTATIVE WAS ABLE TO A PPEAR NOR ANY ADJOURNMENT WAS SOUGHT. (C) THAT SHRI PREM GOPLANI CAME TO KNOW ABOUT THE L APSE ON THE PART OF HIS STAFF MEMBER ONLY WHEN SHRI ABHIMANYU SINGH BHATI HAS INFORMED HIM IN THE THIRD WEEK OF 3ULY,2016 THAT AN EX-PARTY ORDER HAS BEEN PASSED BY THE HON'BLE TRIBUNAL IN THIS CASE. (D) AN AFFIDAVIT OF SHRI PREM GOPLANI, C.A. ASSERTI NG THE ABOVE FACTS IS ALSO ENCLOSED HEREWITH. (E) SINCE THE APPELLANT HAD FILED THE STATEMENT OF FACTS AND THE GROUNDS OF APPEAL ALONG-WITH THE COPIES OF ORDERS O F THE LOWER AUTHORITIES, THE APPELLANT WOULD LIKE TO SUBMIT, RE LYING ON THE ORDER OF HON'BLE GAUHATI HIGH COURT IN THE CASE OF RAJENDRA PRASAD BORAH V/S ITAT, 302 ITR 243 (GAU), THAT THE HON'BLE TRIBUNAL SHOULD HAVE DECIDED THE APPEAL ON MERITS. IN THE ABOVE CIRCUMSTANCES, IT IS RESPECTFULLY SUBM ITTED THAT THE HON'BLE TRIBUNAL MAY BE PLEASED TO ADMIT THIS MISCE LLANEOUS APPLICATION IN ORDER TO RECALL ITS EARLIER ORDER IN THE LIGHT OF THE ABOVE FACTS AND THE DECISION OF THE GUAHATI HIGH COURT (S UPRA). 4. THE APPLICANT SUBMIT WITH GREATEST RESPECT THAT THERE WAS A SUFFICIENT CAUSE FOR FAILURE TO ATTEND ON THE DATE OF HEARING FIXED ON 3.11.2016 BECAUSE THE APPLICANT WAS OUT OF COUNTRY DURING THE PERIOD FROM 14.05.2016 TO 01.01.2017 AT USA. THE XEROX COP Y OF THE APPLICANT'S PASSPORT NO.L2657399 DATED 11.06.2013 I S ENCLOSED HEREWITH WHICH BEAR THE RELEVANT ENDORSEMENTS BY TH E CUSTOM AUTHORITY OF THE RESPECTIVE COUNTRY. HENCE THE APPL ICANT WAS NOT AWARE ABOUT THE DATE OF HEARING WHICH RESULTED INTO NON-A TTENDANCE OR NON - COMPLIANCE. THE POSTAL AUTHORITY -HAS MADE ENDORSEM ENT AS 'LEFT' SINCE THE HOUSE WAS CLOSED. THERE WAS NO WILLFUL OR DELIB ERATE INTENTION TO NON-COMPLY OR UN-ATTEND THE NOTICE. THE APPLICANT I S VERY MUCH ANXIOUS TO CONDUCT THE APPEAL AND NO DEFAULT HAS BEEN MADE IN THE PAST. HENCE, MA NO.38/AHD/2017 3 THE PRESENT APPLICATION. THE EX-PARTY DISPOSAL HAS CAUSED GREAT INJUSTICE AND HARDSHIP TO THE APPLICANT. ASSESSEE HAS FILED AN AFFIDAVIT TO THIS EFFECT SWOR N IN BY PARTNER OF P.D.GOPLANI & ASSOCIATED, CHARTERED ACCOUNTANT, WHO IS REPRESENTING THE CASE OF THE ASSESSEE BEFORE THE TRIBUNAL. THE LD.C OUNSEL FOR THE ASSESSEE THEREFORE PRAYED THAT SINCE THE ASSESSEE IS PREVENT ED BY REASONABLE CAUSE FOR NOT ATTENDING THE HEARING BEFORE THE TRIBUNAL, IMPU GNED EXPARTE ORDER MAY BE RECALLED AND ASSESSEE MAY BE GIVEN ONE MORE OPPORTU NITY TO DEFEND ITS CASE. 3. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES NAR RATED BY THE ASSESSEE, I AM OF THE VIEW THAT IN ALL FAIRNESS AND TO RENDER C OMPLETE JUSTICE, ASSESSEE DESERVES ONE MORE OPPORTUNITY, AND THEREFORE, I AM INCLINED TO CONDONE NON- APPEARANCE OF THE ASSESSEE BEFORE THE TRIBUNAL ON T HE DATE OF HEARING BY RECALLING THE IMPUGNED ORDER AND RESTORING ITS APPE AL TO ITS ORIGINAL NUMBER FOR FRESH HEARING. REGISTRY IS DIRECTED TO ISSUE F RESH NOTICE FOR HEARING ON 10.7.2018. PARTIES BE INFORMED ACCORDINGLY. 4. IN THE RESULT, MA OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 19 TH JANUARY, 2018 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 19/01/2018