M/S. Swaviman Services Pvt. Ltd., Howrah V. I.T.O., Ward - 12(2), Kolkata, Kolkata

MA 39/KOL/2023

AI Insights

Swaviman Services Private Limited filed a Miscellaneous Application under section 254(2) of the Income Tax Act, 1961, challenging an ex parte order passed by the Tribunal due to their non-appearance. The company argued that their authorized representative could not attend the hearing due to a family commitment but had submitted an adjournment request. The Tribunal, considering the circumstances and the rules allowing for the recall of ex parte orders under sufficient cause, decided to recall the order and restore the appeal for a hearing on its merits.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 129845 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-09-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 27-07-2023
• Assessment Year: 2014-2015
• Appeal Filed On: 04-07-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay; Set aside
• Section: 254(2)

Judgement Text

M.A. 39/KOL/2023 (in ITA No.773/KOL/2022) (A.Y. 2014-15) Swaviman Services Private Limited 1 IN THE INCOME TAX APPELLATE TRIBUNAL, ‘B’ BENCH, KOLKATA Shri Sanjay Garg, Jjudicial Member & Before Dr. Manish Borad, Accountant Member M.A. No. 39/KOL/2023 (in I.T.A. No. 773/KOL/2022) Assessment Year: 2014-2015 Swaviman Services Private Limited,...........Appellant 84, Panchanantala Road, 2 nd Floor, Block-A, Flat No. 204, Liluah, Howrah-711204, West Bengal [PAN: AADCS5897D] -Vs.- Income Tax Officer,.................................Respondent Ward-12(2), Kolkata, Aayakar Bhawan, 6 th Floor, P-7, Chowringhee Square, Kolkata-700069 Appearances by: Shri Sunil Surana, A.R., appeared on behalf of the assessee Shri Braj Kishore Singh, JCIT, 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(2) of the Income Tax Act, M.A. 39/KOL/2023 (in ITA No.773/KOL/2022) (A.Y. 2014-15) Swaviman Services Private Limited 2 1961 is directed against the order of this Tribunal in ITA No. 773/KOL/2022 dated 22 nd February, 2023. 2. The Petition filed by the Director of M/s. Swaviman Services Pvt. Limited in the Miscellaneous Application reads as under:- To The Hon'ble Income Appellate Tribunal B-Bench, Kolkata Sir, Sub: Misc. Petition in the case of M/s. Swaviman Services Private Limited arising out of the order dated 22.2.2023 in appeal No.773/K/2022-reg, The petitioner respectfully submits as under: That the petitioner has received the copy of the order passed by the Hon'ble ITAT on 22.2.2023, the copy of the said order was served on 2.3.2023. It appears from order that the same has been passed ex parte for nonappearance by the appellant. It is submitted that the notice for hearing on 16.02.2023 was duly received by the appellant. The appellant instructed his authorized representative Sri Abhishek Bansal for appearance before the Hon'ble Bench. However due to his brother's marriage, he filed an application for adjournment online by mail on 15.2.2023 itself. In support the copy of the adjournment petition is attached herewith along with the mail acknowledgement. The copy of the same was also endorsed to the Ld. Senior departmental representative. It is also submitted that the petition for condonation of delay was also ready and was to be filed at the time of hearing. In fact, the order was passed on physical hearing by the Ld. CIT(A)-4 which was never served on the appellant. It was on receipt of the reminder for payment of tax from the department the appellant came to know of the fact of passing the order by Ld. CIT(A). The petitioner applied for the certified copy of the order and has filed the appeal which is in time. It is submitted that the petitioner is ready and willing to appear on any date as may be fixed by the Hon'ble Tribunal. M.A. 39/KOL/2023 (in ITA No.773/KOL/2022) (A.Y. 2014-15) Swaviman Services Private Limited 3 In view of the above it is humbly requested to your honour to be kind enough to recall the order passed ex parte and direct the office to fix up the hearing of the appeal so that the same can be heard on merits. For this act of kindness, the petitioner as in duty bound shall ever pray. Yours faithfully, For M/s. Swaviman Services Pvt. Ltd. 3. The grievance of the assessee is that the appeal was dismissed on account of time-barred for filing the appeal in time. 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. 4. On the other hand, ld. D.R. opposed the request made by the ld. Counsel for the assessee. 5. We have heard the rival contentions and perused the relevant record placed before us. After going the through the series of events, prima facie, we find merit in the contention of the ld. Counsel for the assessee. 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, therefore, recall the impugned M.A. 39/KOL/2023 (in ITA No.773/KOL/2022) (A.Y. 2014-15) Swaviman Services Private Limited 4 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/- (Sanjay Garg) (Manish Borad) Judicial Member Accountant Member Kolkata, the 11 th day of September, 2023 Copies to :(1) Swaviman Services Private Limited, 84, Panchanantala Road, 2 nd Floor, Block-A, Flat No. 204, Liluah, Howrah-711204, West Bengal (2) Income Tax Officer, Ward-12(2), Kolkata, Aayakar Bhawan, 6 th 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.