Baby Antony L/hr of Varkey Antony, Alappuzha V. ITO, Alappuzha

MA 42/COCH/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5244 (ITAT-COCHIN)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-10-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 08-07-2010
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BEN CH, COCHIN BEFORE S/SHRI N.VIJAYAKUMARAN, JM AND SANJAY AR ORA, AM M.P. NO. 42/COCH/2010 (ASG. OUT OF I.T.A. NO. 806/COCH/2007) ASSESSMENT YEAR : 2003-04 SMT. BABY ANTONY, REP BY L/HR. OF LATE SHRIVARKEY ANTONY, EZHUPUNNA, P.O., CHERTHALA, ALLEPPEY. [PAN: AESPA 9628L] VS. THE INCOME TAX OFFICER, WARD-3, ALLEPPEY. (ASSESSEE-APPLICANT) (REVENUE-RESPONDENT) ASSESSEE BY SHRI R.KRISHNAN, CA-AR REVENUE BY DR. BABU JOSEPH, SR. DR O R D E R PER SANJAY ARORA, AM: THIS IS A MISCELLANEOUS PETITION BY THE ASSESSEE A RISING OUT OF THE ORDER BY THE TRIBUNAL DISMISSING ITS APPEAL FOR THE RELEVANT ASS ESSMENT YEAR IN LIMINE ON THE GROUND OF NON-PROSECUTION THEREOF. THE ASSESSEE-APPLICANT HA S NOW PREFERRED A MISCELLANEOUS APPLICATION STATING THAT THE NON-REPRESENTATION ON THE DATE OF HEARING, I.E., 29.4.2010, WAS NOT ON ACCOUNT OF NON-REPRESENTATION PER SE , BUT DUE TO THE REJECTION OF THE ADJOURNMENT APPLICATION DATED 27.4.2010, WHICH STATED OF HER AU THORISED REPRESENTATIVE (AR) BEING INDISPOSED WITH STOMACH AILMENT AND HAVING BEEN ADV ISED REST, AS A REASON FOR THE SAME. 2. BEFORE US, THE LD. AR, ADVERTING TO THE APPLICAT ION, SUBMITTED THAT IT WAS NOT ON ACCOUNT OF ANY PROFESSIONAL ENGAGEMENT BUT DUE TO H IS INDISPOSITION THAT THE ADJOURNMENT STOOD SOUGHT. AS SUCH, THE SAME MAY BE ACCEPTED AN D THE APPEAL RESTORED FOR ADJUDICATION ON MERITS, AND WHICH WOULD BE ALSO IN THE INTEREST OF JUSTICE. THE LD. DR, ON THE OTHER HAND, OBJECTED TO THE SAME, STATING THAT A SET ASIDE FOR FRESH HEARING WOULD AMOUNT TO A REVIEW BY THE TRIBUNAL OF ITS ORDER, AND WHICH IS NOT M.P. NO. 42/COCH./2010 2 PERMISSIBLE IN LAW. IN REJOINDER, THE LD. AR CITE D THE DECISION IN THE CASE OF KHAITAN PAPER AND INDUSTRIES LTD. VS. CIT (2005) 273 ITR 234 (CAL.) STATING THAT WHEN ADEQUA TE AND REASONABLE GROUNDS FOR OMISSION TO APPEAR FOR H EARING ARE MADE OUT TO THE SATISFACTION OF THE TRIBUNAL, IT IS INHERENTLY EMPO WERED TO RESTORE AND RE-HEAR THE APPEAL AND DISPOSE IT OF ON MERITS. AS SUCH, THE SAME WOU LD NOT AMOUNT TO A REVIEW BUT ONLY AFFORDING OF AN OPPORTUNITY OF BEING HEARD TO THE A GGRIEVED PARTY. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. ADJOURNMENT IS NOT A MATTER OF RIGHT. HOWEVER, THE ASSESSEE HAS SUPPOR TED ITS ADJOURNMENT APPLICATION, I.E., OF BEING UNABLE TO ATTEND THE HEARING, WITH A MEDICAL CERTIFICATE DATED 5.7.2010 STATING OF THE LD. AR, BY NAME, AS BEING UNDER TREATMENT FOR ACUTE GASTRITIS FROM 27.4.2010 TO 1.5.2010, AND ADVISED REST FOR THIS PERIOD. WE ARE, THEREFORE , OF THE VIEW THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FOR BEING NOT PRESENT EITHER IN PERSON OR THROUGH THE AUTHORISED REPRESENTATIVE ON THE DATE OF HEARING. A CCORDINGLY, IN EXERCISE OF THE POWER AND THE PROCEDURE LAID DOWN UNDER RULE 24 OF THE AP PELLATE TRIBUNAL RULES, 1963, WE RESTORE THE ASSESSEES APPEAL FOR HEARING ON MERITS . THE REGISTRY IS DIRECTED TO FIX THE HEARING OF THE APPEAL IN THE REGULAR COURSE. WE DEC IDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES MISCELLANEOUS PETI TION IS ALLOWED. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 21ST OCTOBER, 2010 GJ COPY TO: 1. SMT. BABY ANTONY, REP BY L/HR. OF LATE SHRI VARK EY ANTONY, EZHUPUNNA, P.O., CHERTHALA, ALLEPPEY. 2. THE INCOME-TAX OFFICER, WARD-3, ALLEPPEY. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-IV, KOC HI. 4. THE COMMISSIONER OF INCOME-TAX, KOTTAYAM. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT R EGISTRAR) M.P. NO. 42/COCH./2010 3