M/s Bashishtha Kumar Jaiswal & others, Kanpur V. DCIT, Faizabad

MA 49/LKW/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9135 (ITAT-LUCKNOW)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 24-08-2012
• Assessment Year: misc
• Appeal Filed On: 07-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K RAM
• Section: 10

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH, LUCKNOW BEFORE SHRI S. K. YADAV, JUDICIAL MEMBER AND SHRI B. R. JAIN, ACCOUNTANT MEMBER M.A. NO. 49 /LKW/11 (ARISING OUT OF I.T.A. NO. 269 /LKW/ 11 ) ASSESSMENT YEAR: 1994 - 95 M/S VASHISTHA KUMAR JAISWAL VS. DY. C.I.T., & OTHERS, FAIZABAD CIRCLE, GOSAIGAJ, FAIZABAD. FAIZABAD. PAN:AFWPJ8184R (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI ABHINAV MEHROTRA, C. A. RESPONDENT BY : SHRI R. K. RAM, D.R. DATE OF HEARING :2 4 / 08 /201 2 DATE OF PRONOUNCEMENT : 24/08/2012 ORDER PER B. R. JAIN: THE ASSESSEE , THROUGH ITS APPLICATION DATED 07 / 10 /2011 MADE U/S 2 54(2) OF THE ACT, SEEKS TO RECALL THE TRIBUNAL ORDER DATED 11/07/ 2011 PASSED FOR NON PROSECUTION OF THE APPEAL. 2. BRIEFLY, THE FACTS ARE THAT THE FINAL NOTICE FOR HEARING WAS SENT BY REGISTERED POST WHICH STOOD SERVED ON THE ASSESSEE. AS NONE APPEARED ON BEHALF OF THE 2 ASSESSEE NOR ANY APPLICATION FOR ADJOURNMENT WAS RECEIVED, THE APPELLATE TRIBUNAL, VIDE ITS ORDER DATED 11/07/2011, DISMISSED THE ASSESSEES APPEAL FOR NON PROSECUTION. 3. THE ASSESSEE, IN HIS APPLICATION DATED 07/10/2011, SEEKS TO RECALL THE ORDER OF THE APPELLATE TRIBUNAL FOR THE REASON THAT ONE SHRI ANIL JAISWAL, ADVOCATE, BEING SICK, COULD NOT PRE PARE THE DETAILS AS REQUIRED TO BE GIVEN TO SHRI ABHINAV MEHROTRA, C. A. THE SAID ADVOCATE HAD ALSO SENT AN APPLICATION FOR ADJOURNMENT THROUGH MESSANGER TO SHRI ABHINAV MEHROTRA, C. A. BUT HIS MESSANGER COULD NOT CONTACT SHRI ABHINAV MEHROTRA DUE TO ILLN ESS IN THE FAMILY OF SAID CHARTERED ACCOUNTANT AT ALLAHABAD. THE SAID APPLICATION IS ALSO ACCOMPANIED BY AN AFFIDAVIT OF SHRI ANIL JAISWAL, ADVOCATE. 4. WE HAVE HEARD THE PARTIES WITH REFERENCE TO MATERIAL ON RECORD. THERE WAS NO POWER OF ATTORNEY OF S HRI ANIL JAISWAL, ADVOCATE NOR THAT OF SHRI ABHINAV MEHROTRA ON RECORD OF THE TRIBUNAL WHEN IT TOOK DECISION IN DISMISSING ASSESSEES APPEAL VIDE ITS ORDER DATED 11/07/2011. EVEN AFFIDAVIT OF SHRI ABHINAV MEHROTRA, AFFIRMING THE POSITION AS DEPOSED IN THE AFFIDAVIT OF SHRI ANIL JAISWAL, ADVOCATE, HAS NOT BEEN PLACED ON RECORD BEFORE US BY WAY OF ANY AFFIDAVIT OR OTHERWISE. THE REASONS SO TAKEN BY THE ASSESSEE FOR RECALL OF THE TRIBUNAL ORDER, THEREFORE, DO NOT INSPIRE ANY CONFIDENCE AND BEING DE VOID OF A NY MERIT ARE HEREBY REJECTED. IT, HOWEVER, REMAINS THAT THE APPELLATE TRIBUNAL DID NOT RENDER ITS DECISION ON 3 MERITS OF THE CASE. WE, THEREFORE, HAVING REGARD TO THE JUDGMENT BY HON'BLE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME - TAX VS CHENNIAPP A MUDALIAR (S.) [1969] 74 ITR 41 (SC) AND HON'BLE GAWAHATI HIGH COURT IN THE CASE OF RAJENDRA PRASAD BORAH VS INCOME - TAX APPELLATE TRIBUNAL [2008] 302 ITR 243 (GAU), RECALL THE ORDER FOR RENDERING DECISION ON MERITS OF THE CASE. THE REGISTRY SHALL LIST THE HEARING ON 04/10/2012 . SINCE DATE OF HEARING HAS BEEN PRONOUNCED IN THE COURT, NO FRESH NOTICE BE ISSUED TO THE PARTIES. 5. IN THE RESULT, THE MISC. APPLICATION STANDS ALLOWED. (THE ORDER PRONOUNCED IN THE OPEN COURT ON 24/08/2012 ) SD/. SD/. ( S. K. YADAV ) ( B. R. JAIN ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27/08/2012 *SINGH COPY FORWARDED TO THE: 1. APPELLANT. 2. RESPONDENT. 3. CIT (A) 4. CIT 5. DR. ASSISTANT REGISTRAR