Indag Rubber Ltd, New Delhi V. DCIT, New Delhi

MA 448/DEL/2010

• Counselvise Citation: [2011] 111 COUNSELVISE.COM (IT) 0391 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 1998-1999
• Appeal Filed On: 16-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Assessee Lawyers: RAJESH JHALANI; O S BAJPAI
• Keywords: Opportunity of being heard
• Section: 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH C DELHI ] BEFORE SHRI I. P. BANSAL, JM & SHRI K. D. RANJAN, AM MISC. APP. NO. 448 (DEL) OF 2010 [ IN I. T. APPEAL NO. 279 (DEL) OF 2008 ]. ASSESSMENT YEAR : 1998-99. INDAG RUBBER LTD., DY. COMMISSIO NER OF INCOME-TAX, KHEMKA HOUSE, VS. CIRCLE : 11 (1), 11 COMMUNITY CENTRE, N E W D E L H I. S A K E T, NEW DELHI110 017. PAN / GIR NO. AAA CI 1589 D. ( APPLICANT ) ( RESPONDENT ) ASSESSEE BY : SHRI O. S. BAJPAI, ADV.; & SHRI RAJESH J HALANI, ADV.; DEPARTMENT BY : SHRI A. K. MONGA, SR. D. R.; O R D E R. PER K. D. RANJAN, AM : THIS MISC. APPLICATION BY THE ASSESSEE FOR ASSESSM ENT YEAR 1998-99 IS DIRECTED THE ORDER OF THE TRIBUNAL DATED 28 TH MAY, 2010 IN ITA. NO. 279 (DEL) OF 2008. IT HAS B EEN SUBMITTED THAT THE CASE WAS ORIGINALLY HEARD ON 22 ND SEPTEMBER, 2009, WHICH WAS RELEASED FOR RE-HEARING ON 24 TH SEPTEMBER, 2009. IT HAS FURTHER BEEN SUBMITTED THA T THE BENCH DID NOT FUNCTION ON VARIOUS DATES THEREAFTER. WHEN THE CASE CAME UP FOR HEARING ON 2 0 TH MAY, 2010, THE ASSESSEE COULD NOT APPEAR BEFORE THE TRIBUNAL AS HE HAD NO INFORMATION ABOUT THE CASE BEING FIXED FOR HEARING. THEREFORE, THE ORDER HAS BEEN PASSED EX-PARTE, WITHOUT HEARING THE ASSESSEE. THE ASSESSEE HAD FILED AFFIDAVIT IN SUPPORT OF HIS CONTENTION THAT NO NOTICE FIXING THE CASE FOR HEARING ON 20 TH MAY, 2010 WAS SERVED ON THE ASSESSEE OR UPON ITS COUNSEL. THEREF ORE, THE ORDER PASSED WITHOUT HEARING THE 2 MISC. APP. NO. 448 (DEL) OF 2010 ASSESSEE RELYING ON THE DECISION OF THE ITAT IN THE CASE OF RAJAT LAL VS. DCIT 308 ITR 58 (AT) MAY BE RE-CALLED AND OPPORTUNITY OF BEING HEARD MAY BE GIVEN TO THE ASSESSEE. IT HAS ALSO BEEN SUBMITTED THAT THE ARGUMENTS TOOK PLACE ON EARLIER OCCASION AND THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF BHARAT COMMERCE AND INDUS TRIES LTD. VS. UNION OF INDIA & OTHERS 181 CTR 262 (DEL.) HAS NOT BEEN CONSIDERED IN THE IMPUG NED ORDER OF THE ITAT AND, THEREFORE, IT CONSTITUTES AN APPARENT MISTAKE FROM RECORD. ON TH E OTHER HAND, THE LD. SR. DR SUPPORTED THE ORDER OF THE TRIBUNAL. 2. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. THE NOTICE FOR HEARING ON 20 TH MAY, 2010 HAS NOT BEEN SERVED ON THE ASSESSEE AND IS SUPPORTED BY AN AFFIDAVIT FILED BY SHRI K. K. KAPOOR, WHOLE-TIME DI RECTOR OF THE ASSESSEE COMPANY. IN VIEW OF THE ABOVE FACTS, WE ARE SATISFIED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE TO APPEAR BEFORE THE TRIBUNAL ON 20 TH MAY, 2010. THEREFORE, THE TRIBUNALS ORDER DATED 28 TH MAY, 2010 IN ITA. NO. 279 (DEL) OF 2008 FOR ASSESSMENT YEAR 1998 -99 IS RECALLED, TO BE HEARD AFRESH. THE CASE IS FIXED FOR HEARING ON : 21 ST APRIL, 2011 . IT WAS INFORMED IN THE OPEN COURT THAT NO FURTHE R NOTICE FOR HEARING WILL BE GIVEN TO THE ASSESSEE. BOTH TH E PARTIES WERE INFORMED IN THE OPEN COURT. THE REGISTRY IS DIRECTED ACCORDINGLY. 3. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON : 25 TH FEBRUARY, 2011. SD/- SD/- [ I. P. BANSAL ] [ K. D. RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 25 TH FEBRUARY, 2011 *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPLICANT. 3 MISC. APP. NO. 448 (DEL) OF 2010 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS), 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGI STRAR, ITAT. 4 MISC. APP. NO. 448 (DEL) OF 2010