M/s Surja Ram & sons Malout, Malout V. The Dy. Commissioner of Income-tax, Bathinda

MA 5/ASR/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4191 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 4 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-05-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 19-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UMESH TAKYARDR
• Assessee Lawyers: P N ARORA
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER M.A.NO.05(ASR)/2015 (ARISING OUT OF ITA NO.08(ASR)/2015) ASSESSMENT YEAR:2006-07 PAN: M/S. SURJA RAM & SONS, VS. THE DY. C.I.T. MALOUT. CIRCLE-II, BATHINDA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. P.N. ARORA, ADVOCATE RESPONDENT BY: SH. UMESH TAKYAR,DR DATE OF HEARING: 20/05/2016 DATE OF PRONOUNCEMENT: 20/05/2016 ORDER PER A.D. JAIN, JM: THE PRESENT MISC. APPLICATION FILED BY THE ASSESSE E ARISES OUT OF THE ORDER OF THE TRIBUNAL, DATED 24TH JUNE, 2010, P ASSED IN ITA NO.08(ASR)/2010, FOR THE ASSESSMENT YEAR 2006-07, W HICH WAS DISMISSED FOR NON-PROSECUTION. 2. NOW, THE ASSESSEE HAS, IN THE PRESENT MISC. APPL ICATION, STATED THEREIN, AS FOLLOWS: IN THIS CASE MISC. APPLICATION NO. 05(ASR)/2015 WA S FILED ON 19/01/2015. IT MAY BE FURTHER POINTED OUT THAT IN T HIS CASE QUANTUM APPEAL FILED BEFORE ITAT, AMRITSAR BENCH WA S DISMISSED. THE MISC. APPLICATION SHOULD HAVE BEEN FILED BEFORE 3,1/07/2014 BUT THE SAME WAS FILED ON 19/01/2015. THUS THERE WA S DELAY OFNAMAYS IN FILING THE MISC. APPLICATION AGAINST TH E EX-PARTE ORDER PASSED BY THE TRIBUNAL. IN THIS CASE AS A MATTER OF FACT THE MA-05(ASR)/2015 ASSESSMENT YEAR: 2006-07 2 ADVOCATE/COUNSEL NEITHER APPEARED BEFORE THE CIT(A) NOR BEFORE THE HONBLE BENCH. THUS, DUE TO THE MISTAKE OF THE COUNSEL WE SUFFERED A LOT. IT IS THEREFORE VERY RESPECTFULLY P RAYED THAT THE ASSESSEE SHOULD NOT BE PENALIZED FOR THE MISTAKE OF THE COUNSEL. IN THIS CONNECTION WE HAVE FILED AN AFFIDAVIT BEFORE Y OUR HONOUR ON 20/01/2016 THEREIN NARRATING ALL THE FACTS WHICH LE AD TO FILING THE BELATED MISC. APPLICATION AGAINST THE EX-PARTE ORDE R PASSED BY THE ITAT, AMRITSAR BENCH. IT WAS EXPLAINED IN THE AFFIDAVIT THAT THE APPEAL F ILED BY THE ASSESSEE IN PENALTY PROCEEDINGS U/S 271(L)(C) WAS A LSO DISMISSED BY THE CIT(A) BATHINDA VIDE ORDER DATED 27/01/2013 AGAINST WHICH WE FILED AN APPEAL BEFORE THE AMRITSAR BENCH AGAINS T THE ORDER OF THE LEARNED CIT(A), BATHINDA AND OUR COUNSEL SH. P. N. ARORA ENQUIRED FROM THE OFFICE FROM THE TRIBUNAL ABOUT TH E FATE OF QUANTUM APPEAL BEFORE ITAT AMRITSAR BENCH AND IN TH IS CASE AN APPLICATION WAS FILED ON 10/12/2014 BEFORE THE BENC H FOR THE INSPECTION OF FILE. A PHOTOSTAT COPY OF THE SAME IS ENCLOSED HEREWITH. AFTER INSPECTING THE FILE THROUGH OUR COU NSEL SH. P.N. ARORA ADVOCATE WE CAME TO KNOW THAT THE QUANTUM APP EAL HAS BEEN DISMISSED AND THE APPLICATION FOR RECALLING TH E ORDER SHOULD HAVE BEEN FILED BEFORE 31/07/2014 BUT THE SAME WAS FILED ON 19/01/2015. THUS, THERE WAS REASONABLE AND SUFFICIE NT CAUSE WHICH PREVENTED THE ASSESSEE FROM FILING THE MISC. APPLICATION THEREBY REQUESTING TO RECALL THE EX-PARTE ORDER PAS SED BY THE TRIBUNAL IN ITA NO. 08(ASR)/2010, ORDER DATED 27/01 /2013. 3. THE APPLICATION IS ACCOMPANIED BY AN AFFIDAVIT. THERE IS A DELAY OF 161 DAYS IN FILING THE MISC. APPLICATION. SEEKING T HE CONDONATION OF DELAY, THE CONTENTS OF THE AFFIDAVIT ARE AS FOLLOWS : AFFIDAVIT OF SHRI AMAR KUMAR S/O LATE CH. SURJA RA M, PARTNER OF M/S SURJA RAM & SONS, KAIRON ROAD. MALOU T. 1, AMAR KUMAR, PARTNER OF M/S SURJA RAM & SONS, KAI RON ROAD, MALOUT, TAKE OATH AND SOLEMNLY DEPOSE AS FOLL OWS: 1. THAT IN THIS CASE THE APPEAL WAS PREFERRED BEFOR E THE LEARNED ITAT, AMRITSAR BENCH, AMRITSAR, AND THE APP EAL WAS DISMISSED BY LEARNED BENCH IN ITA NO. MA-05(ASR)/2015 ASSESSMENT YEAR: 2006-07 3 08(ASR)/2010 ON ACCOUNT OF NON-APPEARANCE EITHER BY THE ASSESSEE OR THE AUTHORIZED REPRESENTATIVE. 2. THAT IN THIS CASE, THE EARLIER COUNSEL SHRI MAHE SH KHUNGER, ADVOCATE, NEITHER APPEARED BEFORE THE ID. C1T(A), BATHINDA, NOR BEFORE THE HONBLE BENCH, IT IS ONLY ON ACCOUNT OF THE MISTAKE OF COUNSEL AS REFERR ED ABOVE THAT WE HAVE SUFFERED. HE NEVER INFORMED US T HAT THE APPEAL WAS DISMISSED BY THE HONBLE BENCH COULD BE RECALLED. 3. THAT THE ASSESSEE FURTHER FILED AN APPEAL BEFORE THE LD. CIT(A) BATHINDA U/S 271 (1 )(C) OF THE I.T. ACT, 19 61, RELATING TO ASSESSMENT YEAR 2006-2007, WHICH WAS AL SO DISMISSED VIDE ORDER DATED 27/01/2013 AGAINST WHICH WE TILED AN APPEAL BEFORE THE LEARNED BENCH AND WE ENGAGED SH. P.N. ARORA FOR ARGUING THE PENALTY APPE AL U/S 271 (1 )(C) BEFORE THE LEARNED BENCH. SH. P.N. ARORA, ADVOCATE ENQUIRED FROM THE OFFICE OF THE TRI BUNAL AND CAME TO KNOW THAT THE EARLIER QUANTUM APPEAL RI LED BEFORE ITAT AMRITSAR BENCH HAS BEEN DISMISSED. AFTE R KNOWING THE SAME THE MISC. APPLICATION WAS TILED THEREIN REQUESTING FOR RECALLING THE ORDER IN ITA N O. 08(ASR)/2010. 4. THAT THE SERVICE OF THE SAME WAS AFFECTED ON 29/ 07/2010. THE MISC. APPLICATION WITH A REQUEST FOR RECALLING THE ORDER COULD BE FILED UPTO 31/07/2014, BUT THE SAME WAS FI LED ON 19/01/2015. THUS, THE SAME IS LATE BY 161 DAYS. 5. THAT IT IS PRAYED THAT THE DELAY MAY KINDLY BE C ONDONED AND THE MISC. APPLICATION MAY BE ENTERTAINED AND THE EX -PARTE ORDER PASSED MAY KINDLY BE RECALLED IN THE INTEREST OF NATURAL JUSTICE. AS THERE WAS REASONABLE AND SUFFICIENT CAU SE FOR THE DELAY OF FILING THE APPEAL. 4. FINDING FROM THE CONTENTS OF THE APPLICATION, AS ACCOMPANIED BY THE ASSESSEES AFFIDAVIT, AS REITERATED BY THE LD. COUNSEL FOR THE ASSESSEE BEFORE US THAT THE ASSESSEE WAS PREVENTED BY SUFFIC IENT CAUSE PREVENTING IT FROM FILING THE MISC. APPLICATION IN TIME, THE D ELAY OF 161 DAYS IS CONDONED. MA-05(ASR)/2015 ASSESSMENT YEAR: 2006-07 4 5. APROPOS THE MERITS OF THE APPLICATION, IT HAS BE EN CONTENDED THEREIN, AS FOLLOWS: 3. THAT THE APPEAL WAS DISMISSED BY THIS HONBLE B ENCH IN IT NO.08(ASR)/2010 FOR A.Y. 2006-07 VIDE ORDER DATED 24.06.2010 ON ACCOUNT OF NON APPEARANCE EITHER BY T HE ASSESSEE OR THE AUTHORIZED REPRESENTATIVE. 4. THE HONBLE BENCH HAS DISCUSSED IN PARA 3 ON PAG E 2 OF THE IMPUGNED ORDER THAT THE CIT(A), BATHINDA DISMISSED THE APPEAL OF THE ASSESSEE ONLY ON ACCOUNT OF THE FACT THAT NOBODY APPEARED BEFORE THE CIT(A), BATHINDA. 5. IN VIEW OF THE ABOVE STATED FACTS, IT IS CLEAR T HAT THE EARLIER COUNSEL SH. MAHSH KHUNGER, ADVOCATE, NEITHER APPEA RED BEFORE THE CIT(A) BATHINDA NOR BEFORE THIS HONBLE BENCH AND IT IS ONLY ON ACCOUNT OF HIS MISTAKE THAT WE HA VE SUFFERED. HE NEVER INFORMED US THAT THE APPEAL DISM ISSED BY THIS HONBLE BENCH COULD BE RECALLED. HE FURTHER FI LED ON APPEAL AGAINST ORDER IMPOSING PENALTY U/S 271(1)(C) BEFORE THE CIT(A) BATHINDA WHICH HAS ALSO BEEN DISMISSED I N APPEAL NO.277-IT/CIT(A)/BTI/10-11 VIDE ORDER DATED 24.07.2013 AGAINST WHICH WE HAVE FILED AN APPEAL BE FORE THIS HONBLE BENCH. IT IS ONLY WHEN WE ENGAGED SH.P.N. A RORA, ADVOCATE FOR ARGUING OUR APPEAL AGAINST THE ORDER O F THE CIT(A), BATHINDA CONFIRMING PENALTY U/S 271(1)(C) W E CAME TO KNOW THAT THE EARLIER ORDER OF THIS BENCH DISMIS SING OUR APPEAL AGAINST ORDER OF CIT(A) COULD BE RECALLED BY THIS HONBLE BENCH. 6. FROM THE ABOVE, IT IS SEEN THAT IT WAS FOR NO FA ULT OF THE ASSESSEE THAT THE MATTER WENT UNREPRESENTED BEFORE US, LEADI NG TO THE PASSING OF THE ORDER DATED 24.06.2010, DISMISSING THE ASSESSEE S APPEAL FOR NON- PROSECUTION. HERE ALSO, FINDING THAT THERE WAS SUFF ICIENT CAUSE PREVENTING THE ASSESSEE FOR ITS NON-APPEARANCE BEFORE THE TRIB UNAL, LEADING TO THE DISMISSAL OF THE ASSESSEES APPEAL FOR NON-PROSECUT ION, OUR ORDER DATED 24.06.2010 IS HEREBY RECALLED. THE APPEAL IS NOW F IXED FOR HEARING ON MA-05(ASR)/2015 ASSESSMENT YEAR: 2006-07 5 07.07.2015. NO NOTICE NEEDS TO BE ISSUED, AS THE D ECISION WAS PRONOUNCED IN THE OPEN COURT, IN THE PRESENT OF THE PARTIES. 7. IN THE RESULT, THE MISC. APPLICATION OF THE ASSE SSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20/05/ 2 016. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER /SKR/ DATED: 20/05/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. SURJA RAM & SONS, MALOUT. 2. THE DCIT, CIRCLE-II, BATHINDA. 3. THE CIT(A), BATHINDA 4. THE CIT, BATHINDA. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.