Shri Sadaram Bhawaram Chaudhary, Surat V. ITO Ward 2(3)(4) (Fomerly Income Tax Officer, Ward-2(2)), Surat

MA 41/SRT/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7909 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 8 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 12-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGHLA
• Keywords: Principle of natural justice
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRIPAWAN SINGH, JM &DR. A.L.SAINI, AM MISCELLANEOUS APPLICATION NO.41/SRT/2018 (ARISING OUT OF ITA NO.379/AHD/2014) ( / ASSESSMENT YEAR: (2009-10) (VIRTUAL COURT HEARING) SHRI SADARAM BHAWARAM CHAUDHARY, B-4, FLAT NO. 303-304SHANTUNU RESIDENCY B/S AAS PASS MANDIR, B/H CNG PETROL PUMP, GODADARA, SURAT VS. THE ITO, WARD-2(2), SURAT. (NOW NEW WARD 02(03)(04) ./ ./ PAN/GIR NO.: AKKPC4978K (ASSESSEE/APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI MUKESH MANDOWARA- CA RESPONDENT BY : MS ANUPAMA SINGHLA SR. DR / DATE OF HEARING : 06/08/2021 /DATE OF PRONOUNCEMENT : 23/08/2021 / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE HAS PRAYED FOR RECALLING OF THE ORDER OF THE TRIBUNAL IN ITA NO.379/AHD/2014 FOR ASSESSMENT YEAR 2009-10 IN CASE OF SHRI SADARAM B CHAUDHARY DATED 25.04.2018. 2. IT EMERGES AT THE OUTSET THAT ASSESSEES MISCELLANEOUS APPLICATION SUFFERS FROM FORTY ONE DAYS DELAY IN FILING. LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITS THAT THERE IS NO PROVISION UNDER THE ACT TO CONDONE SUCH A DELAY IN FILING OF A MISCELLANEOUS APPLICATION U/S 254(2) OF THE ACT AND THEREFORE, SAME DESERVES TO BE DISMISSED ON THIS COUNT ALONE. WE SEE NO REASON TO ACCEPT THE REVENUES INSTANT ARGUMENTS. WE NOTE THAT COORDINATE BENCH OF ITAT KOLKATA IN THE CASE OF M/S. MAA TARA AGRO INDUSTRIES VS. PAGE | 2 MA NO.41/SRT/2018 FOR A.Y. 2009-10 SHRI SADARAM B CHAUDHARY I.T.O. WARD-4, MURSHIDABAD IN M.A. 179/KOL/2018 DECIDED ON 21.12.2018, AFTER TAKING INTO CONSIDERATION OF THE HONBLE DELHI HIGH COURTS DECISION IN THE CASE OF OM PRAKASH SANGWAN VS ITO (2018) 94 TAXMANN.COM 394 (DELHI) AND HELD THAT TIME LIMITATION IS NOT APPLICABLE FOR APPEALS WHICH WERE DISMISSED FOR NON-PROSECUTION. WE OBSERVE IN THESE FACTS THAT THE APPLICATION OF THE ASSESSEE IS BARRED BY LIMITATION BY FORTY ONE DAYS, HOWEVER, WE NOTE THAT SINCE THE ABOVE DELAY PROVISION DOES NOT APPLY IN CASE OF AN EX PARTE ORDER DISMISSING THE MAIN APPEAL IN ABSENCE OF EITHER OF THE PARTIES. WE, THUS, DECLINE THE LEARNED DEPARTMENTAL REPRESENTATIVES TECHNICAL ARGUMENTS AND ADMIT THE ASSESSEES MISCELLANEOUS APPLICATION FOR ADJUDICATION ON MERITS. 3. AT THE OUTSET, LD. COUNSEL SUBMITS THAT ORDER PASSED BY THE TRIBUNAL IS EX PARTE WITHOUT ADJUDICATING THE ISSUES ON MERIT. LD. COUNSEL FURTHER SUBMITS THAT THE NOTICE OF HEARING WAS NOT SERVED UPON THE ASSESSEE SO ASSESSEE COULD NOT ATTEND THE HEARING BEFORE THIS TRIBUNAL AND IN TURN THE TRIBUNAL PASSED EX PARTE ORDER WITHOUT ADJUDICATING ISSUES ON MERIT. THUS, LD. COUNSEL FOR THE ASSESSEE PRAYS THAT IN THE INTEREST OF NATURAL JUSTICE THE ORDER PASSED BY THE TRIBUNAL MAY BE RECALLED. 4. ON THE OTHER HAND, LD. SR. DR FOR THE REVENUE SUBMITS THAT ASSESSEE COULD NOT EXPLAIN THE REASONS FOR NOT ATTENDING THE HEARING BEFORE THE TRIBUNAL. THEREFORE, ORDER OF THE TRIBUNAL SHOULD NOT BE RECALLED. 5. KEEPING IN VIEW THE SUBMISSIONS MADE ABOVE, WE ARE SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR NON-APPEARANCE ON BEHALF OF ASSESSEE AT THE TIME OF HEARING FIXED 25.04.2018. WE THEREFORE, RECALL THE EX PARTE ORDER DATED 25.04.2018 PASSED BY THE TRIBUNAL KEEPING IN VIEW THE PROVISO TO RULE 24 OF THE APPELLATE TRIBUNAL, RULES 1963 AND RESTORE THE APPEAL OF THE ASSESSEE AT ITS ORIGINAL NUMBER. THE REGISTRY IS DIRECTED TO FIX THE SAME FOR PAGE | 3 MA NO.41/SRT/2018 FOR A.Y. 2009-10 SHRI SADARAM B CHAUDHARY HEARING AFRESH ON 17.09.2021 AS ANNOUNCED IN THE OPEN COURT AND TAKEN NOTE OF BY THE LEARNED REPRESENTATIVES OF BOTH THE SIDES. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 23/08/2021 BY PLACING THE RESULT ON THE NOTICE BOARD AS PER RULE 34(5) OF THE INCOME-TAX (APPELLATE TRIBUNAL) RULE 1963. SD/- SD/- (PAWAN SINGH) (DR. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER SURAT/ / DATE: 23/08/2021 /DKP OUTSOURCING SR. P.S COPY OF THE ORDER FORWARDED TO 1. THE ASSESSEE 2. THE RESPONDENT 3. THE CIT(A) 4. PR.CIT 5. DR/AR, ITAT, SURAT 6. GUARD FILE BY ORDER // TRUE COPY // ASSISTANT REGISTRAR/SR. PS/PS ITAT, SURAT