M/s Kerry Ltd., Ludhiana V. DCIT, Ludhiana

MA 54/CHANDI/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2352 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 22-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUBHASH AGGARWAL
• Keywords: Bonafide belief

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCHES, CHANDIGARH , ! ' #, # $ % & ' ( , )* ' BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM M.A. 54/CHD/2018 IN I.T.A. NO.-733/CHANDI/2017 (ASSESSMENT YEAR-2012-13) / ASSESSEE BY : SHRI SUBHASH AGGARWAL REVENUE BY : SMT. CHANDER KANTA, SR.DR DATE OF HEARING : 05.10.2018 D ATE OF PRONOUNCEMENT : 29.10.2018 )+ /ORDER PER DIVA SINGH THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FIL ED BY THE ASSESSEE PRAYING FOR RECALL OF THE EX-PARTE ORDER DATED 09.10.2017 IN IT A NO. 733/CHD/2017. 2. RELYING UPON THE APPLICATION FILED, IT WAS SUBMI TTED BY THE LD. AR THAT ON THE SPECIFIC DATE OF HEARING, AN ADJOURNMENT APPLICATION HAD BEE N FILED AND THE ASSESSEE REMAINED UNDER A BONAFIDE BELIEF THAT SINCE AN ADJOURNMENT HAS BEEN FILED, APPEAL WOULD BE ADJOURNED. IT WAS HIS SUBMISSION THAT THE COUNSEL COULD NOT BE PRESEN T ON ACCOUNT OF THE FACT THAT HE WAS UNWELL ON THE SPECIFIC DATE. REFERRING TO THE APPLICATION , IT WAS SUBMITTED THAT IN VIEW OF THE FACT THAT THE ASSESSEE COMPANY HAD SHIFTED ITS BUSINESS FROM LUDHIANA TO BANGALORE, THERE WAS DELAY IN FILING OF THE APPEAL. THE FOLLOWING SUBMISSIONS IN THE APPLICATION FILED WERE RELIED UPON TO SHOW THAT THE ASSESSEE HAD GENUINE AND BONAFIDE REA SONS FOR FILING THE APPEAL LATE : 4. THAT THE REASON FOR LATE FILING OF THE APPEAL B Y 55 DAYS IS ON ACCOUNT OF THE FACT THAT THE COMPANY HAD SHIFTED ITS BUSINESS FROM LUDHIANA TO B ANGLORE SINCE OCT 2013 AT THE FOLLOWING ADDRESS: KERRY LIMITED 8 TH FLOOR, PRITECH PARK ANNEX, MARATHALI SARJAPUR OUTE R RING ROAD, BELLANDUR, BANGALORE. 5. THAT HOWEVER THE COMPANY HAD BEEN FILING INCOME TAX RETURNS AT LUDHIANA AT THE OLD ADDRESS AND HAD REQUESTED THE MANAGEMENT OF MRS . BECTOR'S CREMICA ENTERPRISES LTD. WHO WERE LESSORS OF THE COMPANY TO ATTEND TO THE H EARINGS WHENEVER REQUIRED. 6. THAT THE ORDER OF THE CIT(A) DATED 21/12/2016 A GAINST WHICH THE APPEAL HAS BEEN FILED BEFORE THE HON'BLE TRIBUNAL WAS SERVED ON ONE SH. JATINDER KUMAR WHO IS WORKING AS SECURITY PERSONNEL WITH MRS. BECTOR'S CREMICA ENTER PRISES LTD., LUDHIANA WHO HOWEVER DID NOT INFORM IN TIME TO THE MANAGEMENT OF MRS. BECTOR'S C REMICA ENTERPRISES LTD ABOUT THE RECEIPT OF CIT(A)'S ORDER AND WHEN IT CAME TO THE N OTICE OF THE MANAGEMENT THE APPEAL WAS M/S KERRY LTD., G.T.ROAD, (WEST) JALANDHAR BYE PASS, LUDHIANA. PAN - AAACE3690D ( APPELLANT) VS D CIT , CIRCLE-3, LUDHIANA. (RESPONDENT) M.A. 54/CHD/2018 PAGE 2 OF 2 FILED WHICH RESULTED IN DELAY OF 55 DAYS WHICH MAY PLEASE BE CONDONED TAKING INTO CONSIDERATION THE BONAFIDIES ON THE PART OF APPELLA NT. 3. THE LD. SR.DR RELIED UPON THE ORDER. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. AT THIS STAGE, WE ARE DEALING WITH ONLY RECALL OF THE EX-PARTE ORD ER WHEREIN CONSIDERING THE EXPLANATION FILED, WE FIND THAT THE ASSESSEE REMAINED UNREPRESE NTED FOR THE REASONS BEYOND HIS CONTROL. HAVING PLEADED THAT THE COUNSEL WAS UNWELL, THE ASS ESSEE IN THE PECULIAR FACTS AND CIRCUMSTANCES CAN BE SAID TO BE ENTERTAINING A BONA FIDE BELIEF THAT THE ADJOURNMENT WOULD BE GRANTED. CONSIDERINGIN THE FACT THAT THE ASSESSEE I S SERIOUS IN PURSUING THE APPEAL FILED, EXERCISING THE POWERS AS VESTED BY PROVISO TO RULE 24 OF THE ITAT RULES 1963, THE EX-PARTE ORDER DATED 09.10.2017 IS RECALLED. SUPPORT IS DRA WN FROM THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS ANSAL HOUSING CONS TRUCTION LTD. 274 ITR 131 (DEL). 5. THE SPECIFIC DATE OF HEARING ON THE REQUEST OF T HE LD. AR IS FIXED ON 11.12.2018 . FOR THE SAID DATE, NO SPECIFIC NOTICE WOULD BE GIVEN. 6. BEFORE PARTING, WE DEEM IT APPROPRIATE TO MAKE I T CLEAR THAT AT THIS STAGE, WE ARE NOT REQUIRED TO ADDRESS THE DELAY OF 55 DAYS POINTED OU T BY THE REGISTRY IN FILING OF THE PRESENT APPEAL. THE SAME IS TO BE ADDRESSED ON THE BASIS O F FACTS, EVIDENCES AND AFFIDAVITS ETC. AS NEED BE, WHEN THE APPEAL COMES UP FOR HEARING. 7. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.10. 2018. SD/- SD/- ( $ % & ' ( ) ( ) (ANNAPURNA GUPTA) (DIVA SINGH) )* '/ ACCOUNTANT MEMBER ! '/ JUDICIAL MEMBER % $ !'#$%&# COPY OF THE ORDER FORWARDED TO : 1. %$''( THE APPELLANT - 2. )*'( THE RESPONDENT - 3. ** + CIT 4. ** +,%$'- THE CIT(A) 5. #./* 01*%$'*01234/5 DR, ITAT, CHANDIGARH 6. /46' GUARD FILE BY ORDER, 7*$8 ASSISTANT REGISTRAR