M/s. Shashi Enterprises, Lucknow V. ACIT, Lucknow

MA 47/LKW/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5294 (ITAT-LUCKNOW)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 12-11-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 06-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANADI VERMA
• Keywords: Opportunity of being heard; Reasonable cause; Non compliance

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, LUCKNOW BENCH, LUCKNOW. BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT AND SHRI N.K.SAINI, ACCOUNTANT MEMBER M.A.NO.47(LKW.)/2010 (IN I.T.A.NO.171(LKW.)/2010) A.Y. : 2006-07 M/S. SHASHI ENTEPRISES, VS. THE I.T.O.-II(3), 54/45,PIPAL WALI GALI, LUCKNOW. HUSSAINGANJ, LUCKNOW. PAN ABGFS4513H (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI AMIT SHUKLA, ADVOCATE RESPONDENT BY : SHRI ANADI VERMA, SR. D.R. O R D E R PER H.L.KARWA, VICE PRESIDENT THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE AR ISES OUT OF THE ORDER OF THE TRIBUNAL DATED 19.4.2010 PASSED IN I. T.A.NO.171(LUC.)/2010 RELATING TO THE ASSESSMENT YEAR 2006-07. THE ASSESS EE VIDE ITS APPLICATION DATED 6.9.2010 HAS STATED AS UNDER : SUB : PETITION UNDER RULE 24 OF THE INCOME-TAX (A PPELLATE TRIBUNAL) RULES, 1963. 1. THE ABOVE NAME APPELLANT/APPLICANT MOST RESPECT FULLY BEGS TO SUBMIT AND SHOWETH AS UNDER. 2. THAT THE. APPELLANT/APPLICANT HAS PREFERRED AN A PPEAL BEFORE THIS HON'BLE ITAT AGAINST THE ORDER PASSED BY THE COMMIS SIONER OF INCOME TAX (A)-III, LUCKNOW DATED 13.1.2010 RELATIN G TO ASSESSMENT YEAR 200607, WHEREIN SUBSTANTIAL ADDITIONS AS MADE BY THE ASSESSING 2 OFFICER HAVE BEEN CONFIRMED. THE NOTICE OF HEARING FIXING THE DATE FOR 19.4.2010 SENT BY THE REGISTRY COULD NOT BE RECEIVE D BY THE APPELLANT, AS A RESULT OF WHICH APPEAL OF THE APPELLANT HAS BE EN DECIDED EX-PARTE ON THE SAID DATE ITSELF. 3. THE APPELLANT HAS RECEIVED THE ORDER DATED 19.4 .2010 PASSED IN ITA NO. 171/LUC/2010 WHEREIN ITS APPEAL HAS BEEN DE CIDED IN EX- PARTE BY APPLYING THE RATIO OF ACIT VS. MULTI PLAN INDIA LTD. REPORTED IN 38 ITD 320 (DEL.), BY TREATING THE APPEAL AS NOT ADMITTED ON 6/5/2010. 4. IT IS IMPORTANT TO MENTION HERE THAT THE CROSS APPEAL FILED BY THE DEPARTMENT BEING ITA NO. 252/LUC/2010 HAS BEEN RECE IVED BY THE APPELLANT ON THE SAME ADDRESS ON 7.5.2010 FIXING TH E DATE FOR HEARING 24.5.2010. THE SAID APPEAL OF THE DEPARTMENT WAS FI LED ON1 5.4.2010. HOWEVER, THE NOTICE OF HEARING OF THE APPELLANTS C ASE COULD NOT BE RECEIVED BY IT. 5. THAT THE NON COMPLIANCE OF THE NOTICE OF HEARIN G (FIXED ON 19.4.2010) WAS WHOLLY DUE TO THE REASON THAT THE NO TICE OF HEARING COULD NOT BE' RECEIVED AT THE END OF THE APPELLANT ASSESSEE, EVEN THOUGH THE ORDER PASSED BY THIS HON'BLE ITAT AND THE NOTIC E FOR DEPARTMENTAL APPEAL HAS BEEN RECEIVED ON THE SAME ADDRESS ON 6.5 .2010 AND 7.5.2010 RESPECTIVELY. THUS THE APPELLANT WAS PREVE NTED BY A REASONABLE CAUSE AND BONAFIDE REASON FOR NON APPEAR ANCE ON THE DATE OF HEARING FIXED BY REGISTRY OF ITAT. 5. THAT THE EX-PARTE ORDER AS HAVE' BEEN PASSED BY THIS HON'BLE ITAT HAS CAUSED GREAT PREJUDICE AND HARDSHIP TO THE APPELLANT AS ITS APPEAL HAS NOT BEEN HEARD ON MERITS WITHOUT GIVEN E FFECTIVE OPPORTUNITY OF BEING HEARD. THE COPY OF ORDER DATED 19.04.2010, WHICH IS SUBJECT MATTER OF PRESENT PETITION1APPLICA TION IS ENCLOSED HEREWITH AND. THE SAME IS MARKED AS ANNEXURE-I HERETO. PRAYER 6. IN VIEW OF THE ABOVE, IT IS RESPECTFULLY PRAYED THAT YOUR HONOUR BE PLEASED TO RECALL THE EX-PARTE ORDER DATED 19.04 .2010 AND HEAR THE APPEAL ON MERITS AS THE NON APPEARANCE WAS WHOLLY D UE TO BONAFIDE REASON THAT NOTICE OF HEARING FIXING THE DATED 19.0 4.2010 COULD NOT BE RECEIVED BY THE APPELLANT. THE APPELLANT HEREBY UND ERTAKES TO CONDUCT 3 THE APPEAL ON ANY DATE FIXED BY THE ITAT, IN CASE T HE APPEAL IS RESORTED FOR HEARING. 7. FILING FEE OF RS.50/- IS BEING DEPOSITED HEREWI TH VIDE CHALLAN NO........ DATED ......WHICH, IN ORIGINAL IS ENCLOSED HEREWITH AS ANNEXURE-II HERETO. RESPECTFULLY SUBMITTED, YOURS FAITHFULLY, FOR SHASHI ENTERPRISES ENCLS. AS ABOVE. PARTNER 2. WE HAVE HEARD THE LD.REPRESENTATIVES OF BOTH THE PARTIES AND HAVE ALSO CAREFULLY GONE THROUGH THE CONTENTS OF THE ABOVE APPLICATION. IT IS NOTICED THAT THE APPEAL FILED BY THE ASSESSEE I.E. I..A.NO .171(LUC.)/2010 WAS FIXED FOR HEARING ON 19.4.2010. HOWEVER, ON THE SAID DATE , NOBODY APPEARED ON BEHALF OF THE ASSESSEE AND THE APPEAL WAS TREATED U NADMITTED AS PER THE PROVISIONS OF RULE 19(2) OF THE INCOME-TAX (APPELLA TE TRIBUNAL) RULES, 1963. IN THE INSTANT APPLICATION, THE ASSESSEE HAS CONTENDED THAT NO NOTICE OF HEARING WAS RECEIVED BY IT. IT IS APPARENT FROM THE RECORD THAT NOTICE OF HEARING WAS SENT TO THE ASSESSEE BY REGISTERED POS T ACKNOWLEDGEMENT DUE ON 23.3.2010. THE SAID NOTICE WAS NOT RECEIVED BACK UNDELIVERED. IT IS PRESUMED THAT THE NOTICE OF HEARING WAS SERVED UPON THE ASSESSEE. HOWEVER, IN THE INSTANT APPLICATION, THE ASSESSEE HAS STATE D THAT THE NON-COMPLIANCE OF THE NOTICE OF HEARING (FIXED ON 19 TH APRIL, 2010) WAS WHOLLY DUE TO THE REASON THAT THE NOTICE OF HEARING COULD NOT BE R ECEIVED AT THE END OF THE ASSESSEE, EVEN THOUGH THE ORDER PASSED BY THE TRIBU NAL AND THE NOTICE FOR DEPARTMENTAL APPEAL HAS BEEN RECEIVED ON THE SAME A DDRESS ON 6.5.2010 AND 7.5.2010 RESPECTIVELY. IT IS ALSO STATED THAT THE ASSESSEE WAS PREVENTED BY A 4 REASONABLE CAUSE AND BONA FIDE REASON FOR NON-APPEA RANCE ON THE DATE OF HEARING FIXED BY THE REGISTRY OF I.T.A.T. IT IS STA TED THAT THE GROUNDS AND MEMO OF CROSS APPEAL FILED BY THE DEPARTMENT BEING I.T.A.NO.252(LUC.)/2010 HAVE BEEN RECEIVED BY THE A SSESSEE ON THE SAME ADDRESS ON 7.5.2010 FIXING THE DATE OF HEARING ON 2 4.5.2010. IT IS AN ADMITTED POSITION THAT THE CROSS APPEAL OF THE DEPARTMENT IS PENDING FOR DISPOSAL BEFORE THE TRIBUNAL. THUS, CONSIDERING THE ENTIRE F ACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE SET ASIDE THE ORDER OF THE TR IBUNAL DATED 19.4.2010 AND RESTORE THE APPEAL FOR HEARING SUBJECT TO PAYMENT OF COST OF RS.500. THE ASSESSEE WILL SHOW THE CHALLAN OF PAYMENT OF RS.500 TO THE REGISTRY OF THIS TRIBUNAL AND THEREAFTER THE REGISTRY WILL FIX THE A PPEAL I.E. I.T.A.NO.171(LKW)/2010 RELATING TO ASSESSMENT YEAR 2006-07 FOR HEARING ALONGWITH THE CROSS APPEAL OF THE DEPARTMENT I.E. I .T.A.NO.252(LUC.)/2010. 3. IN THE ABOVE TERMS, THE MISCELLANEOUS APPLICATIO N IS ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 12.11.2 010. SD. SD. (N.K.SAINI) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT NOVEMBER 12TH , 2010. COPY TO THE : 1. APPLICANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R.,ITAT, LUCKNOW. SRIVASTAVA. 5