Shri Poonamchand Soni, Ujjain V. The ITO, Ujjain

MA 41/IND/2009

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3564 (ITAT-INDORE)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-04-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-04-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 08-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Assessee Lawyers: P K DAS
• Keywords: Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI V.K. GUPTA, ACCOUNTANT MEMBER M.A. NO. 41/IND/09 ARISING OUT OF TA NO.717/IND/2007 POONAM CHAND SONI UJJAIN PAN AELPS9902G APPELLANT VS INCOME TAX OFFICER 1(2) UJJAIN RESPONDENT APPLICANT BY : SHRI P.K. DAS RESPONDENT BY : SMT. APARNA KARAN, SR. DR O R D E R PER JOGINDER SINGH, JM THIS MISCELLANEOUS PETITION U/S 254(2) OF THE INCOM E TAX ACT, 1961 HAS BEEN MOVED BY THE ASSESSEE ON THE GROUND THAT D UE TO ILLNESS OF THE COUNSEL, HE COULD NOT APPEAR BEFORE THE BENCH. IT WAS FURTHER STATED THAT ADJOURNMENT APPLICATION OF THE HEARING WAS SEN T THROUGH A PERSON, BUT BECAUSE OF SOME REASONS BEYOND HIS CONTROL, HE COULD NOT PRODUCE THE SAME BEFORE THE BENCH. IT WAS, THEREFORE, PRAYE D THAT BECAUSE OF THESE REASONS, THE ORDER OF THE TRIBUNAL MAY BE REC ALLED AND THE 2 PETITIONER BE GIVEN AN OPPORTUNITY OF BEING HEARD. ON THE OTHER HAND, THE LEARNED SENIOR DR CONTENDED THAT IT WAS THE DUT Y OF THE ASSESSEE TO BE PRESENT BEFORE THE BENCH ON THE APPOINTED DATE A ND IF THE LD. COUNSEL FOR THE ASSESSEE WAS SUFFERING FROM ANY AIL MENT, IT WAS AGAIN HIS DUTY TO INFORM THE BENCH. IT WAS PLEADED THAT T HE IMPUGNED ORDER MAY NOT BE RECALLED AS THERE IS A FAILURE ON THE PA RT OF THE ASSESSEE IN NOT COMPLYING WITH THE NOTICE ISSUED TO THE ASSESSE E. 2. WE HAVE CONSIDERED THE ARGUMENTS ADVANCED BY THE LEARNED RESPECTIVE COUNSELS AND PERUSED THE MATERIAL AVAILA BLE ON FILED INCLUDING THE REASONS FOR NON-APPEARANCE ON THE APPOINTED DAT E. ADMITTEDLY, IT WAS THE DUTY OF THE ASSESSEE TO COMPLY WITH THE NOT ICE OF HEARING ISSUED TO HIM. AS FAR AS AILMENT OF COUNSEL IS CONCERNED, IT IS BEYOND THE CONTROL OF THE ASSESSEE, THEREFORE, WE ARE OF THE V IEW THAT THERE IS A SUFFICIENT REASON FOR NON-APPEARANCE BY THE LD. COU NSEL FOR THE ASSESSEE AND THE ASSESSEE CANNOT BE PENALIZED FOR THE FAULT OF THE COUNSEL, IF ANY. EVEN OTHERWISE, KEEPING IN VIEW THE PRINCIPLES OF N ATURAL JUSTICE, NO PERSON SHOULD BE CONDEMNED UNHEARD, THEREFORE, THE ORDER OF THE TRIBUNAL DATED 4 TH NOVEMBER, 2009 IS RECALLED. THE APPEAL OF THE ASSESSEE WILL BE HEARD ON 22.6.2010 . SINCE THE NEXT DATE OF HEARING WAS PRONOUNCED IN THE OPEN COURT AND WAS DULY NOTED BY THE LD. COUNSEL FOR THE ASSESSEE/REVENUE, THEREFORE, NO SEP ARATE NOTICE FOR HEARING WILL BE SENT BY THE REGISTRY. 3 FINALLY, THE MISCELLANEOUS PETITION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF L EARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF HEARING ON 9 TH APRIL, 2010. SD SD (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER 9 TH APRIL, 2010 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, G UARD FILE *DBN/