Hare Kirshna Food Products, Moradabad V. Pr.Commissioner of Income Tax, Bareilly

MA 4/LKW/2023

AI Insights

The case involves M/s Hare Krishna Food Products, who filed a Miscellaneous Application against an ex-parte order of the ITAT concerning a revisionary order under section 263 of the Income Tax Act, 1961, passed by the Pr. Commissioner of Income-tax, Bareilly. The appellant sought to cancel the ex-parte order and requested a fresh hearing, citing the illness of a partner responsible for handling tax matters, which prevented their appearance at the scheduled hearings. The Tribunal, after considering the circumstances and the explanation provided, decided to set aside the previous order and restore the appeal for a new hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 129856 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-07-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 22-06-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 21-02-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: REVENUE WE HAVE
• Keywords: Opportunity of being heard; Set aside
• Section: 263

Judgement Text

M.A. No.04/Lkw/2023 Assessment Year:11-12 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH ‘A’, LUCKNOW BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER M.A.No.04/Lkw/2023 (in I.T.A. No.73/Lkw/2022) Assessment Year:2011-12 M/s Hare Krishna Food Products Shahpur Tigri, Kushalpur, Moradabad. PAN:AACFH4367D Vs. Pr. C.I.T., Bareilly. (Appellant) (Respondent) O R D E R PER ANADEE NATH MISSHRA:A.M. (A) Vide order dated 21/10/2022 in I.T.A. No.73/Lkw/2022, the assessee’s appeal against revisionary order dated 24/03/2021 (DIN & Order No.ITBA/Revenue/F/REV5/2020-21/1031705283[1]) passed by learned Pr. Commissioner of Income-tax, Bareilly under section 263 of the IT Act, 1961 was dismissed by coordinate Bench of the Income Tax Appellate Tribunal (“ITAT” for short). The aforesaid order dated 21/10/2022 was passed ex- parte qua the appellant assessee. The present Miscellaneous Application (“MA” for short) has been filed by the assessee with the request to cancel Appellant by None Respondent by Shri Amit Nigam, Senior Departmental Representative (“Sr. DR” for short) Date of hearing 23/06/2023 Date of pronouncement 06/07/2023 M.A. No.04/Lkw/2023 Assessment Year:11-12 2 the aforesaid order dated 21/10/2022 and to pass fresh order after giving the appellant assessee, an opportunity of being heard. (A.1) The relevant portion of the Misc. Application, filed by the assessee, is as under: “The Hon'ble ITAT, Lucknow Bench "A", Lucknow in ITA No. 73/Lko/2022 for A.Y. 2011-12 passed an ex-parte order on 21.10.2022 against the undersigned. The grounds on which such decision was made by Hon'ble ITAT is being submitted as under: "5. Now, when this appeal was fixed for hearing before the Division Bench on 19th October, 2022, none appeared on behalf of the assessee nor any application for adjournment has been filed on behalf of the assessee. It is observed that on earlier occasion also, when this appeal came up for hearing before Division Bench on 30th August, 2022, again none appeared on behalf of the assessee. We have observed that Registry has issued notices of hearing to the assessee by RPAD, which were duly served to the assessee and none of the notices had been received back from post authorities, it is clear from records that the assessee is not vigilant in pursuing its appeal filed with tribunal. The DB decided to proceed with adjudication of this appeal on merit based on material on record, after hearing learned CIT- D.R." In the aforesaid para the Hon'ble ITAT has observed that the notice fixing the date of hearing on 19.10.2022 and 30.08.2022 was issued through RPAD and none appeared on behalf of the appellant. In this regard, it is submitted that on 19.10.2022 the appellant Firm partner entrusted with duty of taking care of income-tax matters had fallen sick and for which on doctor's advice was on bed rest. Thus, arrangement of travel of an employee of the assessee Firm was made for appearance on its behalf to seek adjournment, however, due to traffic and being new to the city, he reached little late. Later the employee was informed that the case of the assessee was heard by the Hon'ble Bench when none appeared on its call. The employee had no clue of what should have been done in such a situation and due to non-availability of the abovementioned partner being under the influence of heavy medical dose, he returned. The copy of medical M.A. No.04/Lkw/2023 Assessment Year:11-12 3 certificate of said partner is enclosed. Further, it is submitted that it was informed to the appellant Firm that the Department representative is seeking for adjournment in its case on 30.08.2022 and only cause of this reason being an outstation assessee, none appeared. The copy of screen shot of daily order passed by this Hon'ble Bench on 30.08.2022 is enclosed. Under these circumstances it is a mistake apartment from record which needs to be rectified. It is therefore requested that the said appellate order may kindly be cancelled and fresh order may kindly be passed after giving the appellant an opportunity of being heard. Rs. 50/- has been deposited as fee for filing this Miscellaneous Application (copy of challan enclosed). Prayer It is most respectfully prayed that the Hon'ble Income Tax Appellate Tribunal may kindly be pleased to cancel the earlier order and pass a fresh order after granting me an opportunity of hearing.” (B) At the time of hearing before us, in respect of the present MA, we took cognizance of application for adjournment filed from the assessee’s side, with the request to adjourn the hearing fixed on 23/06/2023 on the ground that the main partner of the firm was seriously ill and was on bed rest. However, after hearing the learned Sr. DR for Revenue we have decided to dispose of this MA. (B.1) The relevant provisions under Income Tax (Appellate Tribunal Rules) Rules, 1963 (“ITAT Rules” for short) are found in Rule 24 of ITAT Rules, which is reproduced below for ready reference: “24. Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorised representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent.” (B.2) The learned Sr. D.R. for Revenue, at the time of hearing before us, left the matter to the discretion to the Bench. M.A. No.04/Lkw/2023 Assessment Year:11-12 4 (B.2.1) We have heard the learned Sr. DR for the Revenue. We have perused the materials on record. In view of the reasons quoted in this Misc. Application, the relevant portion of which has already been reproduced in foregoing paragraph (A.1) of this order, we are of the view that the appellant assessee has provided satisfactory and sufficient explanation regarding cause for non appearance on 19 th October, 2022 when the assessee’s appeal was called on for hearing. Therefore, we set aside the aforesaid order dated 21/10/2022 of coordinate Bench of the ITAT, Lucknow and we restore the assessee’s appeal in I.T.A. No.73/Lkw/2022 for fresh hearing de novo order on merits, by regular Bench of the ITAT, Lucknow. (C) The registry is directed to issue notice of hearing to both sides in assessee’s appeal in I.T.A. No.73/Lkw/2022. (D) In the result, the MA is allowed for statistical purposes. (Order pronounced in the open court on 06/07/2023) Sd/. Sd/. (SUDHANSHU SRIVASTAVA) (ANADEE NATH MISSHRA) Judicial Member Accountant Member Dated:06/07/2023 *Singh Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. D.R., I.T.A.T., 5. CIT(A) Assistant Registrar