Shamsher Jang Bahadur, Hoshiarpur V. The Dy. Commissioner of Income Tax, Hoshiarpur

MA 50/ASR/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5492 (ITAT-AMRITSAR)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 31-03-2017
• Assessment Year: misc
• Appeal Filed On: 10-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J S BHASIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH.T.S. KAPOOR, ACCOUNTANT MEMBER AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER M. A. NO.50(ASR)/2016 (ARISING OUT OF I.T(SS)A NO.04 (ASR)/2012 ) BLOCK PERIOD: 01.04.1989 TO 08.02.2000 SH. SHAMSHER JANG BAHADUR, STREET NO.3, TAGORE NAGAR, HOSHIARPUR. PAN:AAVPB-2248N VS. DY. CIT, HOSHIARPUR CIRCLE, HOSHIARPUR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. J.S. BHASIN (ADV.) RESPONDENT BY: SH. RAHUL DHAWAN (DR) DATE OF HEARING: 31.03.2017 DATE OF PRONOU NCEMENT:24.04.2017 ORDER PER N.K.CHOUDHRY (JM): THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE FOR RECALLING THE EX-PARTE ORDER OF THE TRIBUNA L, DATED 26.12.2012, PASSED IN I.T.(SS)A NO.04(ASR)/2012 FOR BL OCK PERIOD: 01.04.1989 TO 08.02.2000. 2. AT THE OUTSET, THE LEARNED AR CONTENDED THAT THE ASSESSEE COULD NOT ATTEND THE HEARING ON 26.12.2012, AS NO NOTICE WA S EVER SERVED UPON THE ASSESSEE OR HIS COUNSEL. HOWEVER, THE ASSESSEE HAS FIL ED THE WRITTEN SUBMISSIONS MENTIONING THEREIN THE REASONS FOR N ON ATTENDANCE, WHICH ARE REPRODUCED AS UNDER: M A NO.50(ASR)/2016 ARISING OUT OF I.T.(SS )A NO.04(ASR)/2012 2 (I) THAT THE ABOVE NOTED APPEAL OF THE ASSESSEE WAS D ISMISSED BY THE HON'BLE BENCH BY WAY OF AN EX-PARTE ORDER DATED 26. 12.2012 BY RELYING UPON THE CASE OF CIT V MULTIPLAN INDIA LTD 38 ITD 3 20 (DELHI). A COPY OF THIS ORDER IS APPENDED TO FACILITATE QUICK REFERENC E BY THE BENCH. (II). THAT THE APPEAL WAS DISMISSED FOR THE REASON THAT ON THE DATE FIXED FOR HEARING I.E. ON 26.12.2012, NEITHER THE ASSESSE E NOR HIS AUTHORIZED REPRESENTATIVE APPEARED NOR FILED ANY APPLICATION F OR ADJOURNMENT, WHICH SHOWED LACK OF INTEREST ON ASSESSEE'S PART IN PROSE CUTION OF HIS APPEAL. (III) THAT WHILE DISMISSING THE APPEAL, THE ASSESSE E WAS GIVEN LIBERTY TO FILE MISC. APPLICATION FOR RECALL OF THE ORDER TO DECIDE THE APPEAL AS PER LAW. (IV) THAT THE ASSESSEE HAS TO HUMBLY SUBMIT THAT M R VINAY MALHOTRA, C.A. FROM HOSHIARPUR, WAS ASSESSEE'S AUTHORIZED REPRESEN TATIVE WHO NOT ONLY RECEIVED THE NOTICE FROM THE REGISTRY FIXING THE DA TE OF HEARING ON 26.12.2012, BUT HE ALSO APPLIED FOR ADJOURNMENT AS PER COPY OF HIS LETTER DATED 25.12.2012, CITING HIS ILL HEALTH CAUSED BY S EVERE BACK PAIN WHEN HE MET WITH AN ACCIDENT ON 24.12.2012, WHICH REFRAI NED HIM FROM MAKING APPEARANCE ON 26.12.2012. (V) THAT IT IS FURTHER SUBMITTED THAT THE ORDER OF THE BENCH DATED 26.12.2012 WAS ALSO RECEIVED BY MR. VINAY MALHOTRA, CA INASMUCH AS IN FORM NO.36, IT WAS HIS ADDRESS GIVEN FOR COMMUNICAT ION. AS A MATTER OF FACT, MR. MALHOTRA, BEING A CLOSE RELATIVE OF ASSES SEE'S BROTHER, HAD BEEN HANDLING ALL THE CASES OF THE FAMILY AS A WHOLE. (VI) THAT OVER A PERIOD OF TIME, THE ASSESSEE'S REL ATIONS WITH MR. VINAY MALHOTRA, FOR SOME PERSONAL REASONS, HAD GONE SORE AND THEREFORE, HE COULD NOT KEEP TRACK OF HIS CASES, REPRESENTED BY M R. MALHOTRA. (VII) FOLLOWING EX-PARTE ORDERS PASSED IN SOME OF A SSESSEE'S CASES, THE ASSESSEE HAD PARTED WAY WITH MR. MALHOTRA A FEW MON THS BACK AND ENGAGED ANOTHER JALANDHAR BASED COUNSEL TO TAKE CAR E OF HIS CASES. UNDER SUCH CIRCUMSTANCES, IN THE ABOVE APPEAL OF THE ASSE SSEE, WHICH CAME TO BE DISMISSED BY THE BENCH, NO APPLICATION FOR RECALLIN G OF ORDER, COULD BE IMMEDIATELY MOVED, SINCE THE ASSESSEE WAS UNAWARE O F THE ORDER AS ALSO THE REASONS FOR PASSING OF THE EX-PARTE ORDER. NOW AFTER GETTING THE RELEVANT FILE/RECORDS FROM THE EX-COUNSEL, THAT THE ASSESSEE COULD TRACE THE ENCLOSED APPLICATION FROM HIS FILE, WHICH SEEMS TO BE HIS OFFICE COPY, ADDRESSED TO THE ASSTT. REGISTRAR, ITAT AMRITSAR, S EEKING ADJOURNMENT IN THE ABOVE CASE, WHEN IT WAS FIXED FOR 26.12.2012. (VIII) THAT FOR ALL THE ABOVE SAID REASONS, THE ASS ESSEE WAS THUS PREVENTED BY SUFFICIENT CAUSE IN NOT MAKING APPEARANCE BEFORE THE BENCH ON 26.12.2012, AND THEREFORE, HUMBLY PRAYS FOR RECALLI NG OF THE EX-PARTE ORDER OF THE BENCH, AND TO DECIDE THE APPEAL AFTER HEARIN G THE CASE ON MERITS. (XI) WITHOUT PREJUDICE TO ABOVE, RULE 24 OF THE INC OME TAX(APPELLATE TRIBUNAL) RULES, 1963 CLEARLY PROVIDES FOR A DECISI ON ON MERITS EVEN IN THE ABSENCE OF THE APPELLANT, SO THAT DISMISSAL FOR DEF AULT, WHICH IS A M A NO.50(ASR)/2016 ARISING OUT OF I.T.(SS )A NO.04(ASR)/2012 3 PROCEDURE RECOGNIZED IN CIVIL COURTS, WILL NOT HAVE APPLICATION. IT WAS SO HELD IN THE CASE OF RAJENDRA PRASAD BORAH V ITAT (2 008) 302 ITR 243 (GAUHATI) FOLLOWING THE DECISION OF HON'BLE SUPREME COURT IN CIT V S CHENNIAPPA MUDALIAR (1969) 74 ITR 41 (SC). IN THE R ECENT PAST, THE HON'BLE APEX COURT HAS REITERATED THIS VIEW IN THE CENTRAL EXCISE CASE OF BALAJI STEEL ROLLING MILLS VS. CCE&C IN CIVIL APPEAL NO.10265 OF 2014 (2014) 272 CTR 205(SC) THAT THE TRIBUNAL CANNOT PASS AN EXPARTE ORDER IN L IMINE WITHOUT DEALING WITH THE MERITS OF THE CASE. THEREF ORE, THE ORDER OF THE BENCH UNDER REFERENCE, BEING CONTRARY TO LAW LAID D OWN BY HON'BLE SUPREME COURT, DESERVES TO BE RECALLED EVEN ON THIS ACCOUNT ALSO. (X) THAT CHALLAN FOR REQUISITE FEE OF RS.50/- SINCE PAID IS ENCLOSED. IT IS THEREFORE, HUMBLY PRAYED THAT THE ENCLOSED OR DER OF THE BENCH BE KINDLY RECALLED AND THE MATTER BE RE-FIXED FOR HEAR ING ON MERITS. IN VIEW OF THE ABOVE SUBMISSIONS, THE LEARNED COUNSEL FO R THE ASSESSEE PRAYED THAT THE ORDER OF THE TRIBUNAL DATED 26 .12.2012 MAY BE RECALLED FOR FRESH ADJUDICATION ON MERITS, TO WHICH THE LEARNED DR DID NOT OPPOSE. 3. WE HAVE HEARD THE BOTH PARTIES AND HAVE PERUSED T HE MATERIAL AVAILABLE ON RECORD. HENCE, WE ARE SATISFIED WITH THE EX PLANATION OFFERED BY THE ASSESSEE FOR NON ATTENDANCE ON THE SCHEDULE D DATE OF HEARING. THEREFORE, IN THE INTEREST OF JUSTICE, WE RECA LL THE AFORESAID ORDER OF THE TRIBUNAL DATED 26.12.2012 AND DIRECT TH E REGISTRY TO FIX THE MAIN APPEAL FOR HEARING IN DUE COURSE. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 4.04.2017. SD/- SD/- (T. S. KAPOOR) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICI AL MEMBER DATED:24.04.2017. /PK/ PS. M A NO.50(ASR)/2016 ARISING OUT OF I.T.(SS )A NO.04(ASR)/2012 4 COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER