Mansukhbhai V. Vekaria, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-1(3), RAJKOT-GUJARAT

MA 44/RJT/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0105 (ITAT-RAJKOT)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 21-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: J C RANPURA
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

8 Y : : IN THE INCOME TAX APPELLATE TRIBU N AL : RAJKOT BENCH : RAJKOT 5 I.. [ F 5 .. 5 BEFORE SHRI T. K. SHARM A JM AND SHRI D. K. SRIVASTAVA AM M. A . NO . 4 4 /RJ T/2012 (ARIS ING OUT OF ORDER IN ITA NO. 1 3 2 /RJT/201 2 ) T / ASSESSMENT YEAR 200 5 - 06 M ANSUKHBHAI VIRJIBHAI VEKARIA V. IT O PROP. M/S. KHOD I YAR METAL WARD - 1(3) VERAVAL (SHAPAR) RAJKOT. PAN: A B P Q PV4410J DATE OF HEARING: 24 .0 1.2013 DATE OF PRONOUNCEMENT: 08. 0 2 . 2013 FOR THE ASSESSEE: J. C. RANPURA, FCA FOR THE REVENUE: AVINASH KUMAR , DR / ORDER .. 5 / D. K. SRIVASTAVA : THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION SEEKING RESTORATION OF HIS APP EAL BEARING ITA NO.1 3 2/RJT/2012 WHICH WAS EARLIER DISMISSED BY THIS TRIBUNAL ON 26 - 0 7 - 2012 ON ACCOUNT OF NON - PROSECUTION BY THE ASSESSEE. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE READS AS UNDER: - 1.0 THE APPLICANT HAD FILED AN APPEAL IN ITA N O.132/RJT/2012 AGAINST THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, RAJKOT. 2.0 THE HONBLE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT (HEREINAFTER REFERRED TO AS THE ITAT), VIDE ORDER DATED 26.07.2012 HELD THAT NOBODY O N BEHALF OF THE ASSESSEE APPEARED AT THE TIME OF HEARING AND THEREBY DISMISSED THE APPEAL EX - PARTE. 3.0 THE HONBLE ITAT VIDE PARA 2 OF ORDER OBSERVED THAT NOTICE OF HEARING WAS ISSUED TO THE ASSESSEE BY REGISTERED POST FIXING THE APPEAL FOR HEARING ON 1 2.07.2012. HOWEVER, NOTICE OF HEARING HAS BEEN RECEIVED BACK TO THE POSTAL REMARK LEFT ON THE ENVELOPE. THE APPEAL WAS CALLED UP FOR HEARING ON 12.07.2012. NOBODY ON BEHALF OF THE ASSESSEE - APPLICANT APPEARED AT THE TIME OF HEARING. THE APPEAL IS THEREF ORE BEING DISPOSED - OFF EX - PARTE ON THE BASIS OF MATERIALS AVAILABLE ON RECORD. 3.1 IN THIS REGARDS THE APPLICANT MOST RESPECTFULLY BEGS TO SUBMIT THAT THE APPLICANT HAS NOT BEEN SERVED WITH THE NOTICE OF HEARING, AS THE APPLICANT CLOSED THE BUSINESS DUE TO FAILURE. THE APPELLATE ORDER 2 M A 4 4 /RJT/2012 UNDER CONSIDERATION WAS ALSO COLLECTED BY THE AUTHORIZED REPRESENTATIVES OFFICE. IF THE NOTICE WAS SERVED, THE APPLICANT WOULD HAVE SURELY ATTENDED THE HEARING. SINCE THE APPLICANT HAD NO KNOWLEDGE ABOUT THE FIXING OF HEA RING, THE APPEAL REMAINED UNATTENDED ON THE DATE OF HEARING. THE HONBLE ITAT, IN CORRECT APPRECIATION OF THE FACTS, THE GRAVITY OF ISSUES INVOLVED AND ALSO IN DUE CONSIDERATION OF MERITS, INSTEAD OF DISMISSING THE APPEAL AT A STROKE, OUGHT TO HAVE AFFO RDED REASONABLE OPPORTUNITY OF BEING HEARD SO AS TO HONOUR THE PRINCIPLES OF NATURAL JUSTICE. IN VIEW OF THE ABOVE FACTS, THE APPELLANT MOST RESPECTFULLY REQUEST THE HONBLE ITAT TO RECALL ITS ORDER DATED 26.07.2012 IN ITA NO.132/RJT/2012 AND RE - DECIDE T HE APPEAL AFTER ALLOWING OPPORTUNITY OF HEARING AND JUSTICE IS DONE. 2 THE LD. DEPARTMENTAL REPRESENTATIVE HAS NOT REBUTTED THE SUBMISSIONS MADE BY THE ASSESSEE ON FACTS. 3. WE HAVE HEARD BOTH THE PARTIES. ON THE FACTS OF THE CASE AND IN THE INTEREST O F JUSTICE, WE CONSIDER APPROPRIATE TO RECALL THE ORDER PASSED BY THIS TRIBUNAL ON 26 - 07 - 2012 AND RESTORE THE APPEAL BEARING ITA NO.132/RJT/2012 FILED BY THE ASSESSEE FOR A FRESH HEARING AND DISPOSAL. WE ORDER ACCORDINGLY. 4. M ISCELLANEOUS APPLICATION FI LED BY THE ASSESSEE IS ALLOWED. O 08 .02 .2013 O ORDER PRONOUNCED ON 08. 02.2013 SD/ - SD/ - ( 8.. / T. K. SHARMA) ( .. N / D. K. SRIVASTAVA) T N / JUD ICIAL MEMBER / ACCOUNTANT MEMBER /RAJKOT : 08. 02 - 2013 NVA/ - 2 FJO O / COPY OF ORDER FORWARDED TO: - 1. / APPELLANT - SHRI MANSUKHBHAI VIRJIBHAI VEKARIA, VERAVAL (SHAPAR) 2 R /RESPONDENT - THE INCOME - TAX OFFICER, WARD - 1(3), RAJKOT 3. Y M / CONCERNED CIT - I, RAJKOT 4. M - / CIT (A ) - II, RAJKOT 5. TTY, 8 Y, / DR, ITAT, RAJKOT 6. / GUARD FILE / BY ORDER TRUE COPY. SENIOR PRIVATE SECRETARY, ITAT, RAJKOT