ITO, New Delhi V. Dolly Sabharwal, New Delhi

MA 55/DEL/2020

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2533 (ITAT-DELHI)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-03-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 18-03-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

1 M.A NO. 55/DEL/2020 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: FRIDAY E NEW DELHI BEFORE MS SUCHITRA KAMBLE, J UDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, AC COUNTANT MEMBER M.A NO. 55/D EL/2020 IN (ITA NO. 3468/DEL/2017 ( A.Y. 2012-13) AND ITA NO. 3468/DEL/2017 (A.Y 2012-13) SMT. DOLLY SABHAR WAL HOUSE NO. 7, ROAD NO. 84 WEST PUNJABI BAGH, NEW DELHI-110026 PAN: AAXPS1663G (APPLICANT) VS INCOME TAX OFFICER, WARD 41(1), NEW DELHI (RESPONDENT) APPLICANT BY SH. AMOL SINHA, ADV RESPONDENT BY SH. R. K. GUPTA, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE IN RESPECT OF ORDER DATED 23/08/2019 PASSED BY THE TRIBUNAL. 2. THE LD. AR SUBMITTED THAT THE ABOVEMENTIONED AP PEAL WAS FILED BY THE ASSESSEE BEFORE THIS TRIBUNAL CHALLENGING THE ORDER PASSED BY THE CIT(A) -XIV, NEW DELHI DATED 09.12.2016. THE LD. AR FURTHER SUBM ITTED THAT THE CAPTIONED MATTER WAS LISTED BEFORE THIS TRIBUNAL ON 08.08.201 9 AND THE TRIBUNAL DISMISSED THE APPEAL DUE TO THE NON- APPEARANCE OF THE ASSESSEE ON THE DATE OF HEARING. THE LD. AR SUBMITTED THAT THE NON- APPEARA NCE OF THE ASSESSEE WAS NEITHER DELIBERATE NOR INTENTIONAL AS THE COUNSEL A PPEARING FOR THE ASSESSEE I.E. SH. D. N. BATRA HAD EXPIRED ON DECEMBER 2019, HE WA S BEDRIDDEN FOR 8 DATE OF HEARING 13.03.2020 DATE OF PRONOUNCEMENT .03.2020 2 M.A NO. 55/DEL/2020 MONTHS AND ALSO LOST HIS EYE SIGHT. THEREFORE BECAU SE OF THE DEATH OF THE COUNSEL, NO ONE APPEARED ON THE PARTICULAR DATE AND THE ORDER WAS PASSED EX- PARTE PASSED BY THIS TRIBUNAL. THE LD. AR SUBMITTED THAT THE ASSESSEE THEREFORE IN VIEW OF THE ABOVE MENTIONED CIRCUMSTAN CES AND IN LIGHT OF THE ORDER PASSED BY THIS TRIBUNAL FILED THE PRESENT APP LICATION TO RECALL THE ORDER DATED 23.08.2019 AND RESTORE THE APPEAL FILED BY TH E ASSESSEE. THE LD. AR SUBMITTED THAT THE PRESENT APPLICATION MOVED BY THE ASSESSEE IS BONA FIDE AND IN THE INTEREST OF JUSTICE AND NO PREJUDICE WOULD B E CAUSED TO THE RESPONDENT, IF THE SAID APPLICATION IS ALLOWED BY THE TRIBUNAL. 3. THE LD. DR VEHEMENTLY OPPOSED THE MISCELLANEOUS APPLICATION. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. THE ORDER DATED 23/08/2019 WAS PASSED E X-PARTE ON MERIT. THE LD. AR SUBMITTED THAT AS THE COUNSEL OF THE ASS ESSEE WAS NOT WELL AND AFTERWARDS IN DECEMBER 2019, THE COUNSEL OF THE ASSESSEE EXPIRED, THEREFORE, THE ASSESSEE COULD NOT BE REPRESENTED BE FORE THE TRIBUNAL AT THE TIME OF THE APPEAL HEARING. THUS, PRIMA FACIE THE ASSESSEE MADE OUT THE CASE FOR RECALLING THE ORDER DATED 23.08.2019 A ND ALLOWING THIS MISCELLANEOUS APPLICATION. 5. AT THE TIME OF HEARING, THE LD. AR WAS READY TO ARGUE THE APPEAL. THEREFORE, WE ARE TAKING UP THE APPEAL AS WELL AT T HIS STAGE. 6. THE LD. AR SUBMITTED THAT THE ASSESSEE COULD NOT APPEAR BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE CIT(A), DUE TO UNAVOIDABLE CIRCUMSTANCES. THEREFORE, THE LD. AR REQUESTED THA T THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER FOR PROPER ADJUDICATION AND THE ASSESSEE BE GIVEN AN OPPORTUNI TY OF HEARING. 3 M.A NO. 55/DEL/2020 7. THE LD. DR SUBMITTED THAT THE ORDER DATED 23/8/2 019 IS ON MERIT AND, THEREFORE, THE APPEAL COULD NOT BE ENTERTAINED AT T HIS STAGE. THE LD. DR ON MERIT RELIED UPON THE ASSESSMENT ORDER AND THE ORDE R OF THE CIT(A). 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. THE ASSESSEE HAS NOT PRODUCED ANY DOCUMEN TARY EVIDENCE BEFORE THE CIT(A) AS WELL AS BEFORE THE ASSESSING OFFICER. TH EREFORE, BOTH THE AUTHORITIES WAS NOT HAVING THE PROPER EVIDENCE BEFORE ADJUDICAT ING THE MATTER. THOUGH THE REASON IS THAT OF ABSENCE OF THE ASSESSEE BEFOR E THESE AUTHORITIES, STILL IN THE INTEREST OF JUSTICE, IT WILL BE APPROPRIATE TO REMAND BACK THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER TO BE DECIDED ON AFRE SH ON PAYMENT OF RS.25,000/- WHICH SHOULD BE PAID TO THE PRIME MINISTERS RELIEF FUND. THE ASSESSEE WILL APPEAR BEFORE THE ASSESSING OFFICER ON 20TH MARCH, 2020 AND WILL SUBMIT THE EVIDENCE. THE ASSESSING OFFICER IS DIRECTED TO TAK E THE EVIDENCE INTO CONSIDERATION BEFORE MAKING ANY ADDITION AND GIVE T HE HEARING TO THE ASSESSEE ACCORDINGLY AND PASS THE ASSESSMENT ORDER WHICH DEE MS FIT IN CONSONANCE WITH LAW AND AS PER THE EVIDENCE PRODUCED BY THE AS SESSEE. IF THE ASSESSEE FAILS TO APPEAR BEFORE THE ASSESSING OFFICER, THE D EPARTMENT IS AT LIBERTY TO RECOVER THE ORIGINAL TAX AMOUNT FROM THE ASSESSEE. IN RESULT, ITA NO. 3468/DEL/2017 IS PARTLY ALLOWED FOR STATISTICAL PUR POSE. 9. IN RESULT, APPEAL FILED BY THE ASSESSEE IS PARTL Y ALLOWED FOR STATISTICAL PURPOSE AND THE MISC. APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16TH MARCH, 2020 . SD/- SD/- (P. MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 16/03/2020 *R. N* COPY FORWARDED TO: 4 M.A NO. 55/DEL/2020 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 16.03.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 16.03.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 16.03.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 16.03.2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK