Itemax Engineering Services Pvt. Ltd., Bardhaman V. DCIT, Cir-2(1), Kolkata, Kolkata

MA 38/KOL/2023

AI Insights

The case involves Itemax Engineering Services Pvt. Ltd., which filed a Miscellaneous Application seeking the recall of an ex parte order passed by the Income Tax Appellate Tribunal, Kolkata. The ex parte order was issued due to the assessee's non-appearance at a scheduled hearing, attributed to the non-receipt of a notice. The assessee argued that the absence of notice prevented them from attending the hearing, and thus, the ex parte decision was made without considering the merits of their case. The Tribunal, referencing a similar case decided by the Delhi High Court, agreed to recall the ex parte order and provide the assessee another opportunity to present their case.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 125417 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-09-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 03-08-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 04-07-2023
• Other Referred Cases: Pacific Projects Ltd. Vs. ACIT
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MANISH TIWARI
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, KOLKATA [Before Shri Sanjay Garg, Judicial Member & Shri Rajesh Kumar, Accountant Member] MA No. 38/Kol/2023 In I.T.A. No. 244/Kol/2019 Assessment Year: 2012-13 Itemax Engineering Services Pvt. Ltd. D-14, R. S. Bithi City Centre, Durgapur, Paschim Bardhaman, West Bengal-713216. (PAN: AACCD3977A) Vs. DCIT, Circle-2(1), Kolkata. Applicant Respondent Date of Hearing 04.08.2023 Date of Pronouncement 19.09.2023 For the Appellant Shri Manish Tiwari, AR For the Respondent Shri P. P. Barman, Addl. CIT, Sr. DR ORDER Per Shri Rajesh Kumar, AM By virtue of this Misc. Application the assessee seeks recalling of the ex parte order passed by the Tribunal dated 29.08.2022 for AY 2012-13 in ITA No. 244/Kol/2019. 2. The Ld. AR submitted before the Bench that the assessee has not received any notice of hearing from the Registry of the Tribunal which is primary reason for not attending the appeal before the Tribunal. The Ld. AR submitted that the Tribunal decided the appeal of the assessee ex parte as stated above without considering the merits of the case. The Ld. Counsel further submitted that the failure on the part of the assessee to attend the hearing on 22.08.2022 is for the reasons beyond the control of the assessee and, therefore, assessee cannot be deprived of his legitimate and lawful right to present its case on merit before this Bench. Besides, the ex parte order has been passed on technical ground for non-compliance by the assessee without deciding the same on merit. The Ld. AR, therefore, prayed that the ex parte order may be recalled so that the appeal can be heard on merit and decided accordingly. When asked, the appeal is time barred by limitation by 127 days, the Ld. AR 2 MA No. 38/Kol/2023 In ITA No. 244/Kol/2019 Itemax Engg. Services (P) Ltd, AY 2012-13 submitted that since assessee has not received the Tribunal order and, therefore, there is no question of its Misc. Application being barred by limitation. The Ld. Counsel in reference to his arguments relied on the decision of Hon’ble Delhi High Court in the case of Pacific Projects Ltd. Vs. ACIT in W.P(C) 2080/2020 & CM APPLs. 7346-7347/2020 dated 23.12.2020 wherein the Hon’ble High Court has decided the similar issue in favour of the assessee. Ld. AR, therefore, prayed that Misc. Application of the assessee may kindly be allowed. 3. The Ld. DR, on the other hand, submitted that on the date of hearing the assessee has failed to appear before the Bench and, therefore, the Bench passed the ex parte order. The Ld. DR also referred to the delay in filing the Misc. Application beyond the period of six months from the date of the order and prayed that the Misc. Application being barred by limitation u/s. 254(2) of the Act and may kindly be dismissed. 4. After hearing the rival contentions and perusing the material available on record, we observe that the Coordinate Bench has passed ex parte order dated 29.08.2022 in ITA No. 244/Kol/2019, AY 2012-13 when the assessee failed to appear on 22.082022. According to the assessee, the notice of hearing was not received and that is the reason for non- appearance before the bench. Besides, a perusal of the order reveals that the ex parte order has been passed on technical issue of non-compliance/non-appearance on the date of hearing without disposing of the appeal on merit. 5. Under these circumstances, we are of the view that assessee needs to be given one more opportunity to present its case on merit by recalling our order dated 29.08.2022. On the issue of Misc. Application being barred by limitation, we find that the same is squarely covered by the decision of Hon’ble Delhi High Court in the case of Pacific Projects Limited (supra), wherein the Hon’ble Court has decided the identical issue in favour of the assessee by holding that it cannot be said that limitation would start from the date of the order when it was pronounced by the tribunal when the assessee has no notice or knowledge of the said order. The Hon’ble High Court has quashed the ex parte assessment as well as directed the 3 MA No. 38/Kol/2023 In ITA No. 244/Kol/2019 Itemax Engg. Services (P) Ltd, AY 2012-13 Tribunal to hear and dispose of the appeal on merit. We, respectfully following the same, recall our ex parte order dated 29.08.2022 and direct the Registry to fix the same for hearing in the regular course. 6. In the result, Misc. Application of the assessee is allowed. Order is pronounced in the open court on 19th September, 2023 Sd/- Sd/- (Sanjay Garg) (Rajesh Kumar) Judicial Member Accountant Member Dated: 19th September, 2023 JD, Sr. PS Copy of the order forwarded to: 1. Appellant– 2. Respondent . 3. CIT(A)-1, Kolkata. 4. Pr. CIT-1, Kolkata. , 5. DR, ITAT, Kolkata, True Copy By Order Assistant Registrar ITAT, Kolkata Bench, Kolkata