Shri Narendra Ramanlal Desai,HUF, Valsad V. The Income tax Officer,Ward-2, Vapi

MA 45/SRT/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2532 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 3 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-01-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-01-2022
• Assessment Year: 2003-2004
• Appeal Filed On: 06-09-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Keywords: Principle of natural justice
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM MA No.45/SRT/2020 [Arising out of ITA No.851/AHD/2013] Assessment Year: (2003-04) (Virtual Court Hearing) Shri Narendra R. Desai (HUF), At Palsana, PO. Udwada, Dist. Valsad, Valsad-396180, Gujarat. Vs. The ITO, Ward-2, Vapi. èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AAFHN4661D (Revenue) (Assessee) Assessee by : Shri Hardik Vora, CA Revenue by : Ms Anupama Singla, Sr. DR स ु नवाईकȧतारȣख/ Date of Hearing : 03/01/2022 घोषणाकȧतारȣख/Date of Pronouncement : 06/01/2022 आदेश / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: By way of this Miscellaneous Application the assessee is seeking to recall the order of this Tribunal whereby the appeal of the assessee was dismissed by the Tribunal in limine for want of non-prosecution vide its order dated 18.11.2016. 2. It emerges at the outset that assessee’s miscellaneous application suffers from 1224 days’ delay in filing. Learned departmental representative submits that there is no provision under the Act to condone such a delay in filing of a miscellaneous application u/s 254(2) of the Act and therefore, same deserves to be dismissed on this count alone. We see no reason to accept the Revenue’s instant arguments. We note that Coordinate Bench of ITAT Kolkata in the case of M/s. Maa Tara Agro Industries vs. I.T.O. Ward-4, Murshidabad in M.A. 179/Kol/2018 decided on 21.12.2018, after taking into consideration of the hon’ble Delhi high court’s decision in the case of Om Prakash Sangwan vs ITO (2018) 94 taxmann.com 394 (Delhi) and held that time limitation is not applicable for appeals which were dismissed for non-prosecution. We observe in these facts that the application of the assessee is barred by limitation by 1224 Page | 2 MA No.45/SRT/2020 Assessment Year.2003-04 Narendra R Desai HUF days, however, we note that since the above delay provision does not apply in case of an ex parte order dismissing the main appeal in absence of either of the parties. We, thus, decline the learned departmental representative’s technical arguments and admit the assessee’s miscellaneous application for adjudication on merits. 3. At the outset, Ld. Counsel submits that order passed by the Tribunal is ex parte without adjudicating the issues on merit. Ld. Counsel further submits that assessee`s counsel was died suddenly so assessee could not attend the hearing before this Tribunal and in turn the Tribunal passed ex parte order without adjudicating issues on merit. Thus, Ld. Counsel for the assessee prays that in the interest of natural justice the order passed by the Tribunal may be recalled. 4. On the other hand, Ld. Sr. DR for the Revenue submits that assessee could not explain the reasons for not attending the hearing before the Tribunal. Therefore, order of the Tribunal should not be recalled. 5. We have heard both the parties, we note that Tribunal has dismissed the assessee’s appeal on account of non-prosecution observing as follows: “2. It is noticed that when the matter came up for hearing, none appeared for and on behalf of the assessee appellant despite notice having been sent by Registered Post. From this, it is reasonable to infer that the assessee is not serious to pursue its case. Hon'ble Supreme Court in the case of CIT v B N Bhattachargee and Another, 118 ITR 461 (SC) observed that preferring an appeal means effectively pursuing it. Hon'ble M. P High Court in the case of Estate of Late Tukojirao Holkar vs CWT, 223 ITR 480 (MP) dismissed the reference filed by the assessee for not taking necessary steps. Similar view is taken by ITAT, Delhi Bench in the case of Multiplan India Ltd., 38 ITD 320. Considering the above, it appears that the assessee is not interested in prosecuting its appeal. I, therefore, dismiss the appeal filed by the assessee for non-prosecution.” 6. Keeping in view the submissions made above, we are satisfied that there was a sufficient cause for non-appearance on behalf of assessee at the time of hearing. We therefore, recall the ex parte order dated 18.11.2016 passed by the Tribunal keeping in view the proviso to Rule 24 of the Appellate Tribunal Page | 3 MA No.45/SRT/2020 Assessment Year.2003-04 Narendra R Desai HUF Rules 1963 and restore the appeal of the assessee at its original number. The registry is directed to fix the same for hearing afresh on 30.03.2022 as announced in the open court and taken note of by the learned representatives of both the sides, therefore no separate notices for hearing would be sent. 7. In the result, Miscellaneous Application filed by the assessee is allowed. Order is pronounced on 06/01/2022 for placing result on notice board. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 06/01/2022 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. Pr.CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat