SUAJKISHAN DEOKISHAN THANVI, SILVASSA V. INCOME TAX OFFICER, INCOME TAX OFFICER WARD2, VAPI

MA 45/SRT/2022

AI Insights

The case involves Suajkishan Deokishan Thanvi, the appellant, who sought rectification and recall of an earlier Tribunal order concerning the Assessment Year 2010-11. The appellant's AR failed to attend a scheduled hearing due to family health crises related to COVID-19, leading to an ex-parte decision against the appellant. The Tribunal considered the circumstances presented by the AR, including the death of a close relative and the appellant's relocation due to health issues, and decided to recall the previous order to allow a fair hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 302204 (ITAT-SURAT)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-02-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-02-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 18-09-2022
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Principle of natural justice
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER M.A. No. 45/Srt/2022 (Arising out of ITA No. 145/Srt/2021) (Assessment Year: 2010-11) (Physical hearing) Suajkishan Deokishan Thanvi, B/204, Mayuri Appt., Amli Road, Silvasaa-396230. Also at Xxxxx xxxxxx PAN No. ACYPJ 7355 D Vs. I.T.O., Ward-2, Vapi. Appellant/ assessee Respondent/ revenue Appellant represented by Shri Satyadev Purohit, CA Respondent represented by Shri Vinod Kumar, Sr.DR Date of hearing 03/02/2022 Date of pronouncement 03/02/2023 Order under section 254(2) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This Miscellaneous Applications (MA) is filed by the assessee for seeking rectification/recalling of order of this Tribunal dated 09/06/2022 passed in ITA No. 145/Srt/2021 for the Assessment Year (AY) 2010-11. 2. The learned Authorised representative (ld.AR) of the assessee submits that the first date of hearing was fixed on 11/02/2022 and the appeal was adjourned to 04/05/2022. For hearing fixed on 04/05/2022, the ld. AR of the assessee filed application for adjournment on 23/04/2022, for seeking one-month time. The AR of the assessee could not inquired the next date of hearing MA No.45/SRT/2022 Suajkishan Deokishan Thanvi Vs ITO 2 from the registry as his close relatives were infected by Covid-19 and one of them expired. No further notice was received either by AR or by assessee. The assessee has shifted his address from Silvassa to Jodhpur due to ill health and old age. Since no further notice was received either by assessee or by ld. AR of the assessee, the ld. AR of the assessee was under the impression that fresh notice would be issued to him. The ld. AR during the hearing fairly accepted their mistake that it was their fault in non-appearing before the Tribunal when they sought adjournment on 04/05/2022. 3. The ld. AR for the assessee submits that the assessee is a senior citizen and has good case on merit. In absence of AR of the assessee the bench has passed order on the basis of material available on record after hearing the Sr DR for the revenue, in ex- party decision. There was no mistake on the part of assessee rather it is negligence of their part in not attending the hearing. The ld. AR of the assessee and the assessee who is present in the Court, submits that they undertake to be more vigilant in future and not to miss any date of hearing and further undertook to conclude their submission on one date in case the order dated 09/06/2022 is recalled. 4. On the other hand, the ld. Senior Departmental Representative (ld. Sr. DR) for the Revenue submits that the Bench has given MA No.45/SRT/2022 Suajkishan Deokishan Thanvi Vs ITO 3 sufficient opportunity to the assessee. The appeal was filed in 2021 and till the hearing of appeal not a single document was filed by assessee. The assessee was not serious in pursing his case. The Bench has passed the order on the basis of material available on record. There is no mistake in the order which may be classified as mistake apparent on record. In case, the order is recalled, it may be claimed as precedent by other persons. The ld. Sr. DR for the revenue prayed for dismissal of the Misc. application of the assessee. 5. We have considered the rival submissions of both the parties and perused the order dated 09/06/2022. After considering the submissions of ld. AR of the assessee that his close family members were infected by Covid-19 in second wave and one of his close relative died, we are of the view that the ld AR of assessee has shown sufficient cause for his non-appearance on the day when the appeal was heard ex-party. Therefore, considering such cause as sufficient cause within the scope of Rule-24 of Income Tax (Appellate Tribunal) Rules-1963. The assessee further undertook to be more vigilant in future and not to make any further default regarding non-appearance, therefore, keeping in view that the AR for the assessee has shown sufficient cause for re-calling the order dated 09.06.2022. We also find that a very short question is raised in the present appeal about adding 100% MA No.45/SRT/2022 Suajkishan Deokishan Thanvi Vs ITO 4 business receipts as an income of assessee. Therefore, keeping in view the paramount considering of natural justice, the order dated 09/06/2022 is recalled. As we have recalled the order dated 09/06/2022, the hearing of appeal is fixed on 06/03/2023. The date of hearing was fixed in presence of parties, therefore, issuance of fresh notice is dispensed with. The ld. AR of the assessee is directed to file paper book/documents one week before the date of hearing, if so desired, after supplying the same to the office of Departmental Representative. With this observation, this Misc. application of the assessee is allowed. 6. In the result, this Misc. application of the assessee is allowed. Order was announced on 03 rd February, 2023 at the time of hearing in physical court hearing. Sd/- Sd/- (Dr. ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 03/02/2023 *Ranjan Copy to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR 6. Guard File By order / / TRUE COPY / / Sr. Pvt. Secretary, ITAT, Surat