MADHUR JAIN legal heir of Rakesh Jain, New Delhi V. ITO, WARD- 63(2), NEW DELHI

MA 430/DEL/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0125 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 21-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIMA BARNWAL
• Keywords: Principle of natural justice
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI FRIDAY BENCH: NEW DELHI (THROUGH VIDEO CONFERENCING ) BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER M.A.NO.-430/DEL/2019 [IN ITA NO.5681/DEL/2018] [ASSESSMENT YEAR : 2014-15] SH.MAD H UR JAIN, LEGAL HEIR OF HIS FATHER RAKESH JAIN, 33, DEPUTY GANJ, SADAR BAZAR, DELHI-110006. PAN-AAHPJ8586D VS ITO, WARD-63(2), NEW DELHI. APPELLANT RESPONDENT APPELLANT BY SH. MANOJ KUMAR, CA RESPONDENT BY MS. ANIMA BARNWAL, SR.DR DATE OF HEARING 23.07.2021 DATE OF PRONOUNCEMENT 23.07.2021 ORDER PER KUL BHARAT, JM : THIS MISCELLANEOUS APPLICATION IS FILED BY THE APPL ICANT SEEKING RECALL OF THE ORDER DATED 05.03.2019 IN ITA NO.5681/DEL/2 018 PASSED BY THE TRIBUNAL FOR THE ASSESSMENT YEAR 2014-15. 2. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE NOTICE OF HEARING WAS NOT RECEIVED BY THE APPLICANT. HE FURTHER SUBMITTE D THAT IN THIS REGARD, AN AFFIDAVIT HAS ALSO BEEN FILED BY THE APPLICANT. HE CONTENDED THAT IN THE INTEREST OF PRINCIPLES OF NATURAL JUSTICE, THE ORDE R MAY BE RECALLED AND THE APPEAL BE FIXED ON ITS ORIGINAL NUMBER. 3. PER CONTRA, LD. SR. DR OPPOSED THE SUBMISSIONS. M.A.NO.-430/DEL/2019 [IN ITA NO.5681/DEL/2018] 2 | P A GE 4. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. THE TRIBUNAL HAD DISMISSED THE APPEAL O F THE APPLICANT BY OBSERVING AS UNDER:- 2. THE ASSESSEE HAS BEEN NOTIFIED THE DATE OF HEAR ING THROUGH REGISTERED POST. HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE. THE LD.D.R. CONTENDED THAT IN THIS CASE SURVEY WAS CONDUCTED UNDER SECTION 133A OF THE INCOME TAX ACT, 1961 AND DIFFER ENCE IN THE STOCK WAS FOUND WHICH RESULTED INTO THE ADDITION. THE LD .D.R. ALSO CONTENDED THAT ASSESSEE FAILED TO RECONCILE THE SAM E DIFFERENCES. THEREFORE, APPEAL OF ASSESSEE HAS NO MERIT. 3. CONSIDERING THE SUBMISSIONS OF THE LD. D.R, I A M OF THE VIEW THAT ASSESSEE IS NOT INTERESTED IN PROSECUTING THE APPEA L AND IS UNABLE TO RECONCILE THE DIFFERENCE. THEREFORE, APPEAL OF ASSE SSEE IS LIABLE TO BE DISMISSED. 4. IN VIEW OF THE ABOVE AND HAVING REGARD TO RULE 19(2) OF INCOME TAX APPELLATE TRIBUNAL RULES AND FOLLOWING VARIOUS DECISIONS OF DELHI BENCH OF THE TRIBUNAL INCLUDING THAT OF MULTIPLAN I NDIA LTD., 38 ITD 320 (DEL.); HON'BLE MADHYA PRADESH HIGH COURT DECISION IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT 223 ITR 480 (MP), AND ALSO THE DECISION OF HON'BLE SUPREME COURT IN THE CASE O F CIT VS. B. BHATTACHARGEE & ANOTHER (118 ITR 461 AT PAGE 477-47 8) WHEREIN THEIR LORDSHIPS HELD THAT 'THE APPEAL DOES NOT MEAN, MERE FILING OF THE MEMO OF APPEAL BUT EFFECTIVELY PURSUING THE SAME'. IN VI EW OF THE ABOVE, RESPECTFULLY FOLLOWING THE AFORECITED DECISIONS, WE DISMISS THE APPEAL OF THE ASSESSEE AS UN-ADMITTED. 5. KEEPING IN VIEW THE FACT THAT THE APPLICANT HAS STATED ON OATH THAT NOTICE OF HEARING WAS NOT RECEIVED. THEREFORE, TO SUB-SERVE IN THE INTEREST OF PRINCIPLES OF NATURAL JUSTICE, I HEREBY RECALL T HE ORDER DATED 05.03.2019 M.A.NO.-430/DEL/2019 [IN ITA NO.5681/DEL/2018] 3 | P A GE AND RESTORE THE APPEAL AT ITS ORIGINAL NUMBER AND D IRECT THE REGISTRY TO FIX THE APPEAL ON 18.10.2021 FOR HEARING. BOTH PARTIES HAVE BEEN INFORMED. THUS, MISCELLANEOUS APPLICATION FILED BY THE ASSESS EE IS ALLOWED. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ABOVE DECISION WAS PRONOUNCED ON CONCLUSION OF VIRT UAL HEARING IN THE PRESENCE OF BOTH THE PARTIES ON 23 RD JULY, 2021. SD/- (KUL BHARAT) JUDICIAL MEMBER * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI