M/s Axa Business Services Pvt. Ltd., Bangalore V. DCIT, Bangalore

MA 52/BANG/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7466 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 04-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G V GOPALA RAO CIT IDR
• Assessee Lawyers: P DINESH
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE GEORGE K., JUDICIAL MEMBER M.A. NO.52/BANG/2011 (ARISING OUT OF ITA NO.1424/BANG/2010) ASSESSMENT YEAR : 2006-07 M/S. AXA BUSINESS SERVICES PVT. LTD., NO.16/2, PRESTIGE.COM, RESIDENCY ROAD, BANGALORE 560 025. PAN: AAACA 5310J VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 11(1), BANGALORE. APPLICANT RESPONDENT APPLICANT BY : SHRI P. DINESH, ADVOCATE RESPONDENT BY : SHRI G.V. GOPALA RAO, CIT-I(DR) DATE OF HEARING : 27.01.2012 DATE OF PRONOUNCEMENT : 27.01.2012 O R D E R PER N.K. SAINI, ACCOUNTANT MEMBER THIS MISCELLANEOUS APPLICATION IN M.A. NO.52/BANG/ 2011 HAS BEEN FILED BY THE ASSESSEE AGAINST THE EX-PARTE ORDER OF THE I.T.A.T. DATED 29.09.2011 FOR THE ASSESSMENT YEAR 2006-07 STATING THEREIN AS UNDER: MP NO.52/BANG/11 PAGE 2 OF 4 IT IS SUBMITTED THAT THE ABOVE APPEAL WAS POSTED F OR HEARING BEFORE THE HON'BLE TRIBUNAL ON 29.09.2011 A ND THE HON'BLE TRIBUNAL PASSED THE ORDER DISMISSING THE AP PEAL FOR NON- PROSECUTION VIDE EX-PARTE ORDER DATED 29.09.2011. IT IS RESPECTFULLY SUBMITTED THAT THE ASSESSEE-COMP ANY HAD RECEIVED THE NOTICE OF HEARING LONG BACK I.E., ON 0 5.09.2011 AND THE PERSON WHO RECEIVED THE NOTICE BY OVERSIGHT DID NOT HANDOVER THE NOTICE TO THE CONCERNED LEGAL DEPARTMENT TO BE FORWARDED TO THE ASSESSEE'S COUNSEL. IN THE CIRCUMSTANCES, ON AC COUNT OF COMMUNICATION GAP, THE COUNSEL THOUGH WAS PRESENT B EFORE THE HON'BLE TRIBUNAL IN CONNECTION WITH SOME OTHER CASE S COULD NOT REPRESENT THE ABOVE CASE FOR WANT OF INSTRUCTIONS. IT IS FURTHER HUMBLY SUBMITTED THAT THE ISSUES INVO LVED IN THE ABOVE CASE ARE SQUARELY COVERED BY THE VERY ORD ER OF THIS HON'BLE TRIBUNAL IN THE APPELLANT'S OWN CASE FOR EA RLIER ASSESSMENT YEARS. IT IS RESPECTFULLY SUBMITTED THAT NON-APPEARANCE OF THE ASSESSEE OR ITS COUNSEL ON THE DATE OF HEARI NG BEFORE THE HON'BLE TRIBUNAL WAS ON ACCOUNT OF BONA FIDE REASON S EXPLAINED SUPRA AND NON-APPEARANCE IS NEITHER INTENTIONAL NOR DELIBERATE. IT IS THEREFORE HUMBLY PRAYED THAT THE EX-PARTE O RDER DATED 29.09.2011 DISMISSING THE ABOVE APPEAL MAY KINDLY B E RECALLED AND THE APPEAL MAY KINDLY BE LISTED IN THE INTEREST OF JUSTICE AND EQUITY. AN OPPORTUNITY OF BEING HEARD M THE MATTER MAY PL EASE BE GIVEN BEFORE DISPOSAL OF THIS APPLICATION. 2. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS STATED IN THE M ISCELLANEOUS APPLICATION AND SUBMITTED THAT THE ORDER OF THE TRI BUNAL DATED 29.09.2011 WAS PASSED EX PARTE FOR NON-PROSECUTION WITHOUT GOING INTO THE MERITS OF THE CASE. IT WAS SUBMITTED THAT THOUGH NOTICE OF H EARING WAS RECEIVED LONG BACK ON 05.09.2011, BUT THE PERSON WHO RECEIVED THE NOTICE BY OVERSIGHT DID NOT HANDOVER THE NOTICE TO THE CONCERNED TO BE FORWARDED TO ASSESSEES COUNSEL, THEREFORE THOUGH THE COUNSEL WAS PRESENT B EFORE THE TRIBUNAL IN CONNECTION WITH SOME OTHER CASES, BUT HE COULD NOT REPRESENT THE ABOVE MP NO.52/BANG/11 PAGE 3 OF 4 CASE FOR WANT OF INSTRUCTIONS FROM THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT THE ISSUES INVOLVED IN THE ABOVE CASE ARE SQUA RELY COVERED BY THE ORDER OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR E ARLIER ASSESSMENT YEARS. IT WAS ALSO SUBMITTED THAT THE NON-APPEARANCE OF TH E ASSESSEE OR ITS COUNSEL ON THE DATE OF HEARING OF THE APPEAL BEFORE THE TRIBUNAL WAS ON ACCOUNT OF BONA FIDE REASONS EXPLAINED SUPRA AND NO N-APPEARANCE IS NEITHER INTENTIONAL NOR DELIBERATE 3. IN HIS RIVAL SUBMISSIONS, THE LD. CIT(DR) SUBMIT TED THAT CONSIDERING THE NON-COOPERATIVE ATTITUDE OF THE ASSESSEE, THE P RESENT MISC. APPLICATION IS TO BE DISMISSED. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND GONE THROUGH THE CONTENTS OF THE MISC. APPLICATION. IT APPEARS THAT THE NOTICE FOR HEARING WAS RECEIVED BY THE ASSESSEE ON 05.09.2011, BUT BY OVERSIGHT THE SAME WAS NOT HANDED OVER TO THE LEGAL DEPARTMENT TO BE FORWARDED TO ASSESSEES COUNSEL. IN THE CIRCUMSTANCES, THE COUN SEL THOUGH WAS PRESENT BEFORE THE TRIBUNAL, BUT COULD REPRESENT THE ASSESS EES CASE FOR WANT OF INSTRUCTIONS FROM THE ASSESSEE. WE ARE OF THE VIEW THAT THE NON- APPEARANCE OF THE ASSESSEE DURING THE COURSE OF HEA RING OF THE APPEAL WAS FOR BONAFIDE REASONS AND NOT INTENTIONAL. IN THAT VIEW OF THE MATTER AND CONSIDERING THE TOTALITY OF THE FACTS OF THE PRESEN T CASE, WE RECALL THE EX- PARTE ORDER DATED 29.09.2011 AND THE REGISTRY IS DI RECTED TO REFIX THE APPEAL IN ITA NO.1424/BANG/2010 FOR THE ASSESSMENT YEAR 2006-07 IN DUE COURSE. MP NO.52/BANG/11 PAGE 4 OF 4 5. IN THE RESULT, THE MISCELLANEOUS PETITION BY THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF JANUARY, 2012. SD/- SD/- ( GEORGE GEORGE K. ) ( N.K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 27 TH JANUARY, 2012. DS/- COPY TO: 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.