Avesthagen Limited, Bangalore V. DDIT, Bangalore

MA 41/BANG/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6519 (ITAT-BANGALORE)
• Duration Of Justice: 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 13-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R H KUSUM

Judgement Text

MP.41/BANG/2011 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH 'B', BANGALORE BEFORE SHRI. N. BHARATHVAJA SANKAR, VICE PRESIDENT AND SHRI. GEORGE GEORGE K. JUDICIAL MEMBER MISCELLANEOUS PETITION NO.41/BANG/2011 (IN I.T.A NO.972/BANG/2010) (ASSESSMENT YEAR : 2008-09) M/S. AVESTHAGEN LTD., (FORMERLY AVESTHA GENGRAINE TECHNOLOGIES P. LTD., 'DISCOVERER', 9TH FLOOR, INTERNATIONAL TECH PARK, WHITEFIELD, BANGALORE 560 066 .. APPLICANT PAN NO.AABCA7217K V. DEPUTY DIRECTOR OF INCOME-TAX, (INTERNATIONAL TAXATION), CIRCLE - 1(1), BANGALORE .. RESPONDENT APPLICANT BY : SHRI. R. H. KUSUM, CA RESPONDENT BY : SHRI. ETWA MUNDA, COMMISSIONER OF INCOME-TAX-III O R D E R PER N. BHARATHVAJA SANKAR, VICE PRESIDENT : THIS MISCELLANEOUS PETITION IS FILED BY THE ASSESS EE, M/S. AVESTHAGEN LTD., OF BANGALORE, REQUESTING TO RECALL THE ORDER DATED.09.05.2011, IN ITA NO.972/BANG/2010, FOR THE FOLLOWING REASONS : 'THE APPELLANT HAD FILED A PETITION FOR ADJOURNMENT OF HEARING POSTED ON 28/02/2011 AND ALSO HAD SEND FAX PRAYING FOR ADJ OURNMENT OF HEARING, AT 9.10 AM ON 09/05/2011. THE APPELLANT I S FACING SEVERE FINANCIAL CRISES AND IF THE APPELLANT IS THE APPEAL PETITION IS NOT MP.41/BANG/2011 PAGE - 2 RESTORED AND HEARD, THE APPELLANT WOULD BE PUT TO G REAT FINANCIAL LOSS. THERE IS NO WILLFUL OR WANTON DEFAULT ON THE PART O F THE ASSESSEE IN ATTENDING THE HEARING POSTED ON 09/05/2011. THE FA ILURE TO PRESENT THE ADJOURNMENT PETITION IN TIME WAS DUE TO REASONS BEY OND THE CONTROL OF THE APPELLANT.' 2. WE HAVE HEARD THE ASSESSEE'S REPRESENTATIVE, DEP ARTMENTAL REPRESENTATIVE, CONSIDERED THE CONTENTS OF THE MISC ELLANEOUS PETITION AND PERUSED THE MATERIALS ON THE APPEAL FILE. WE F IND FROM THE APPEAL FILE THAT THE FAX SEEKING THE ADJOURNMENT OF THE CA SE POSTED ON 09.05.2011 WAS BROUGHT TO THE NOTICE OF THE BENCH O NLY AFTER THE MEMBERS RETIRED TO THE CHAMBERS COMPLETING THE HEAR ING. DURING THE COURSE OF HEARING ITSELF, IT WAS PRONOUNCED THAT TH IS APPEAL NO.972/BANG/2010, WAS DISMISSED FOR NON-PROSECUTION , SINCE NO APPEARANCE, NOR ANY APPLICATION FOR ADJOURNMENT WAS THERE AT THE TIME OF HEARING. ALSO THE BENCH OBSERVED THAT THE ASSE SSEE HAS NOT FILED THE CONCISE GROUND AS ALREADY DIRECTED BY THE BENCH . IN SUCH CIRCUMSTANCES, THE APPEAL OF THE ASSESSEE WAS DISMI SSED FOR WANT OF PROSECUTION. 3. HOWEVER, ON GOING THROUGH THE CONTENTS OF THE MI SCELLANEOUS PETITION, WE FIND THAT THE DELAY IN FILING THE ADJO URNMENT APPLICATION MP.41/BANG/2011 PAGE - 3 WAS BEYOND THE CONTROL OF THE ASSESSEE. HENCE, WE ARE INCLINED TO RECALL OUR ORDER DATED.09/05/2011 AND RESTORE THE A PPEAL ON THE ROLLS OF THE TRIBUNAL. THE REGISTRY IS DIRECTED TO POST THE APPEAL FOR HEARING ON 07.09.2011. NO SEPARATE NOTICE OF HEARING NEED BE SENT TO THE PARTIES AS THE SERVICE OF THE ORDER IN THIS MISCELL ANEOUS APPLICATION ITSELF WOULD SUFFICE AS SUFFICIENT NOTICE OF THE DA TE OF HEARING. SINCE NO CONCISE GROUND IS FOUND ON RECORD AS OBSERVED BY THE BENCH ON 28.02.2011 ITSELF, THE ASSESSEE IS ALSO DIRECTED TO FILE CONCISE GROUND OF APPEAL. 4. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT AT THE TIME OF HEARI NG ON 01.07.2011, AT BANGALORE. SD/- SD/- (GEORGE GEORGE K) (N. BHARATHVAJA SANKAR) JUDICIAL MEMBER VICE PRESIDENT