CREATIVE TECHNO SOLUTIONS PVT. LTD., NEW DELHI V. ITO, WARD- 6(4), NEW DELHI

MA 414/DEL/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0702 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-04-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 26-10-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reasonable cause; Set aside
• Section: 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI “B” BENCH: NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER M.A.No.414/Del/2023 [In ITA No.4265/Del/2017] [Assessment Year : 2012-13] Creative Techno Solutions Pvt.Ltd., Pocket-8A, House No.1, Manave Chowk, Sector-15, Rohini, New Delhi-110088. PAN-AACCC7550N vs ITO, Ward-6(4), New Delhi. APPELLANT RESPONDENT Appellant by Shri Vivek Bansal, Adv. Respondent by Shri Om Parkash, Sr.DR Date of Hearing 26.04.2024 Date of Pronouncement 29.07.2024 ORDER PER KUL BHARAT, JM : By this Miscellaneous Application (“M.A”), the assessee is seeking recalling of the ex-parte order dated 10.10.2023 passed by the Tribunal in ITA No.4265/Del/2017 for the Assessment Year 2012-13. 2. Ld. Counsel for the assessee reiterated the submissions as made in the application. For the sake of clarity, the relevant contents of the application are reproduced as under:- “It is respectfully submitted as under:- Facts 1. The Department being aggrieved by order dated 23-02-2017 passed by the CIT(A)-2, New Delhi for AY 2012-13 in appeal no. 142/15-16 of CIT(A)-2 had preferred an appeal before this Hon'ble Tribunal which was listed as ITA No. 4265/DEL/2017. Page | 2 2. The above appeal of the Department has been decided ex parte, qua the applicant, vide order passed by Hon'ble B-Bench of Tribunal in New Delhi vide order dated 10-10- 2023 in ITA No. No. 4265/Del/2017 and the hearing was concluded on 05-10-2023. 3. That the applicant (Respondent), from the stage of first appeal is represented by Sh. Narender Abrol and such fact can be seen from the first appellate order dated 23-02- 2017. It may also be seen that Sh. Narender Abrol has not only sought adjournment before this Hon'ble Tribunal but also has filed paper book for facilitating the hearing before this Hon'ble Tribunal on 19-07-2023 when the same was accepted by Hon'ble Tribunal and the appeal was adjourned to 05-10-2023. However, Sh. Narender Abrol, by mistake took note of the adjourned date as 06-10-2023. It is equally pertinent to note that on 06-10-2023 Sh. Narender Abrol had made appearance before B- Bench of this Hon'ble Tribunal and found that the matter was heard on 05-10-2023. Hon'ble Bench was also apprised of this fact on 06- 10-2023 and he was advised, if so desired, to take appropriate remedy of filing a Miscellaneous Application("MA") as the matter was already heard ex parte on 05-10-2023. The proof of visit of Sh. Narender Abrol on 06-10-2023 at 12:10 PM to Income Tax Appellate Tribunal, New Delhi is in the shape of visitor pass being registered number as 0022/00184/610150/2023 is being attached herewith. 4. That after visiting the Income Tax Appellate Tribunal, Sh. Narender also sent e-mail to [e-mail] at 04:00 PM on 06-10-2023. The text of which is as under :- "Honourable ITAT B Bench Appeal no. ITA 4265/DEL/2017 Asssesee: - Creative Techno Solutions Private limited Respected sir With due respect we would like to inform you that the date of said case was not attended by AR due to some clerical mistake of nothing Page | 3 the date of case 06/10 instead of 5/ 10 So we lumbly request before your honour pls give us a opportunity of submission. Pls consider our request. Thanks Regards CA Narender Abrol" Copy of e-mail so sent is also attached. 5. It is in these aforementioned circumstances, the present application is being filed taking recourse to the proviso to rule 25 of the Income- Tax (Appellate Tribunal) Rules, 1963 ("the Rules"). Rule 25 reads as under: - "Hearing of appeal ex parte for default by the respondent. 25. Where, on the day fixed for hearing or any other day to which the hearing may be adjourned, the appellant appears and the respondent 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 appellant: [Provided that where an appeal has been disposed of as provided above and the [respondent] appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex parte order and restore the appeal." 6. That it is prayed that according to facts and circumstances mentioned above, there is a sufficient cause for the applicant for its non-appearance when the appeal was called on for hearing. Therefore, the ex-parte order dated 10-10-2023 may be set aside and the aforementioned appeal no. 4265/Del/2017 may be restored to its original position. 7. That to support the above facts, the applicant is filing a sworn affidavit of Sh. Narender Abrol and prays that aforementioned Page | 4 circumstances may be treated as sufficient cause for non- appearance of the applicant (Respondent) when the appeal was called on for hearing on 05-10-2023 and the present application is prayed to be allowed. PRAYER It is prayed as under: - 1. The aforementioned facts and circumstances are prayed to be treated as sufficient cause within the meaning of proviso to rule 25 of the Rules for non-appearance of the applicant (Respondent) when the appeal was called on for hearing on 05-10- 2023. 2. Accordingly, order of this Hon'ble Tribunal dated 10-10-2023 passed in ITA No. No. 4265/Del/2017 is prayed to be set aside and ITA No. No. 4265/Del/2017 be restored to its original position.” 3. On the other hand, Ld.Sr.DR for the Revenue opposed the submissions and submitted that there is no mistake apparent from the record and the negligence of Ld.AR for the assessee for recording correct date of hearing cannot be a reasonable cause. Moreover, daily order sheet entry is uploaded by the Registry. 4. We have heard Ld. Representatives of the parties and perused the material available on records. There is no dispute that the appeal was heard ex-parte to the assessee and decided on the basis of material available on records. The reason for absence of the assessee/or its representative is stated to be that Ld. AR for the assessee recorded wrong date of hearing. It is stated that he recorded the date of hearing, being 06.10.2023 instead of 05.10.2023. It is further stated that when he came to attend hearing on 06.10.2023, he came to know that appeal has already been heard. He submitted that the Page | 5 absence was due to bonafide reasons. It is contended that the assessee lost his valuable right of representation of its case. It is well-settled that an ex-parte order can be set aside if there is a reasonable cause for such absence, in terms of Rule 25 of ITAT Rules. 5. Looking to the facts of the present case, it is pleaded that this being reasonable and bonafide cause, for not attending the hearing of appeal. To sub-serve the interest of principles of natural justice, we hereby recall our order dated 10.10.2023 and direct the Registry to fix the hearing of appeal at its original number in due course. The M.A. filed by the assessee is accordingly, allowed. 6. In the result, the Miscellaneous application of the assessee is allowed. Order pronounced in the open Court on 29 th July, 2024. Sd/- Sd/- (PRADIP KUMAR KEDIA) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER * Amit Kumar * Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI