SHRI NITIN KUMAR MOYAL, SIKAR V. INCOME TAX OFFICER, WARD-1, SIKAR

MA 6/JPR/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 8148 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-11-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 23-02-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reasonable cause
• Section: 143(3); 254(2)

Judgement Text

v k;dj v i h y h; v f/kd j.k] t;i q j U ;k ;i h B ] t;i q j IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Jh fot; iky jko] U; kf ;d l nL; , oa Jh foØe fl ag ;k n o] ys[kk l n L; d s l e {k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM MA No. 06/JP/2021 (Arising out of MA No. 45/JP/2020 & ITA No. 474/JP/2019) f u /kZ kj. k o "kZ@Assessment Year : 2013-14 Shri Nitin Kumar Moyal Ward-17, Shastri Nagar, Sikar. cu ke Vs. The ITO, Ward-1, Sikar. LFk k;h y s[kk la-@t hv k bZv kj la-@PAN/GIR No.: ATBPK 3208 L v ihy kFkh Z @Appellant i z R;Fkh Z @Respondent f u /kZ kf jr h dh v ks j ls@ Assessee by : Shri Daulat Ram Moyal (Father of the appellant) jkt Lo dh v ksj l s@ Revenue by : Smt. A.S. Nehra (Addl.CIT) lq u o kb Z dh r kjh[k@ Date of Hearing : 16/11/2021 mn ? kks" k. kk dh r kjh[k@Date of Pronouncement: 18/11/2021 v kns'k @ ORDER PER: VIJAY PAL RAO, J.M. By way of this application the assessee is seeking recalling of the order of this Tribunal dated 10.08.2020 passed in MA No. 45/JP/2020 arising the order of the Tribunal dated 27.08.2019 in ITA No. 474/JP/2019. 2. One Shri Daulat Ram Moyal father of the appellant/assessee appeared and filed his Power of Attorney to represent the assessee. He MA No. 06/JP/2021 Shri Nitin Kumar Moyal vs. ITO 2 has submitted that the Tribunal has dismissed the appeal of the assessee vide ex-parte order whereas the assessee did not receive any notice from the Tribunal regarding the date of hearing of the appeal. The authorized representative further submitted that in absence of the knowledge about the date of hearing the assessee could not appear before the Tribunal at the time of hearing of the appeal and thereafter the Misc. Application No. 45/JP/2020 was also dismissed by the Tribunal vide ex-parte order dated 10.08.2020 but the assessee did not receive any notice of the hearing. He has further submitted that the Misc. Application was dismissed by the Tribunal during the Covid-19 pandemic and the assessee was not having the facility of Video conference hearing therefore, he could not appear in the hearing of the Misc. Application. He has prayed that the appeal of the assessee may be heard afresh and the assessee be given physical hearing. 3. On the other hand, the ld. DR has submitted that the assessee is a habitual defaulter in appearing in the tax matter. He has pointed out the assessment order was passed by the AO Under section 143(3) r.w.s. 147 of the Act, however the assessee never appear before the AO during the assessment proceedings. Despite none cooperative behavior of the assessee the Assessing Officer conducted a proper enquiry by MA No. 06/JP/2021 Shri Nitin Kumar Moyal vs. ITO 3 issuing summons to the person whose money the assessee has claimed to have been deposited in his bank account. The assessee did not file any details and documents as required by the AO. Even before the ld. CIT(A) nobody has attended but only written submissions were filed on behalf of the assessee. The ld. DR has raised the objection about the maintainability of the present application and submitted that there is no provisions of filing a Misc. application against the order of the Tribunal passed U/s 254(2) of the Income Tax Act. The assessee did not appear in the hearing proceedings of the appeal and thereafter the misc. application was filed by the assessee but again nobody appeared on behalf of the assessee. Therefore, when the Tribunal has decided the appeal of the assessee on merits and assessee has not pointed out any mistake in the impugned order of the Tribunal then the misc. application filed by the assessee is not maintainable and liable to be dismissed. 4. We have considered the rival submissions as well as relevant material on record. Apart from the submissions advanced by the ld. AR of the assessee certain averments made by the assessee in the misc. application are as under:- MA No. 06/JP/2021 Shri Nitin Kumar Moyal vs. ITO 4 MA No. 06/JP/2021 Shri Nitin Kumar Moyal vs. ITO 5 MA No. 06/JP/2021 Shri Nitin Kumar Moyal vs. ITO 6 MA No. 06/JP/2021 Shri Nitin Kumar Moyal vs. ITO 7 5. The assessee has contended that he is a very poor person and has not received any notice of hearing when the appeal was dismissed by the Tribunal vide ex-parte order dated 27.08.2019. It is pertinent to note that the hearing of the appeal in ITA No. 474/JP/2019 were fixed during the pre Covid in the year 2019. Initially one Shri O.P. Soni appeared and sought adjournment but thereafter nobody appeared on MA No. 06/JP/2021 Shri Nitin Kumar Moyal vs. ITO 8 behalf of the assessee despite the notice was issued to the assessee through RPAD as well as E-mail ID given by the assessee in Form No. 36 “[e-mail].” Thus it is clear that the e-mail ID given in Form No. 36 is the assessee’s own ID and therefore, the assessee cannot take a plea that he has not received notice issued by the Tribunal. Even otherwise the plea of the assessee being a poor person cannot be accepted in view of the fact that Rupees more than one crore were deposited by the assessee in the bank account during the year under consideration. Though the assessee claimed that this money belongs to one Shri Amit Goyal however, the AO examined him during the assessment proceedings and he denied the amount belongs to him. The Tribunal decided the appeal of the assessee on merits vide order dated 27.08.2019. Further, in the absence of any material or other evidence to show that the money deposited in the bank account of the assessee belongs one Shri Amit Goyal, the Tribunal could not find any reasons to interfere with the orders of the AO as well as ld. CIT(A). Against the order of the Tribunal dated 27.08.2019 the assessee filed a misc. application in MA No. 45/JP/2020 but since the assessee did not appear the same was dismissed by the Tribunal by recording the facts in para 2 and 3 are as under:- MA No. 06/JP/2021 Shri Nitin Kumar Moyal vs. ITO 9 “2. The assessee has explained the reasons for non appearance that he has authorized and given the power attorney in favour of Shri O.P. Soni (C.A.) but he has not appeared and attending the hearing before the Tribunal. Except this explanation the assessee has not stated anything. None has appeared on behalf of the assessee when this Misc. Application was called for hearing through video conference despite notice issued to the assessee through RPAD as well as at the e-mail ID given by the assessee. We further note that the appeal of the assessee was decided by the Tribunal ex-parte because of the reason that despite the adjournment taken by the assessee and noting down the date of hearing, nobody appeared on behalf of the assessee on repeated occasions. It is pertinent to note that despite the ex- parte order passed by the Tribunal and the Misc. Application filed by the assessee again nobody has attended the hearing. Therefore, the assessee is not sincere in pursuing the matters before the Tribunal hence, we propose to hear and dispose off this Misc. Application ex-parte. 3. The appeal of the assessee was decided by the Tribunal on merits after considering the facts available on record as well as arguments of the assessee advance before the ld. CIT(A). In the absence of any apparent mistake in the impugned order of the Tribunal pointed out in the Misc. Application of the assessee, we do not find any substance or merit in the Misc. Application whereby the assessee is seeking recalling of the order. Even otherwise the Tribunal cannot review or revise its own orders passed on merits after analyzing the facts and evidence on record. The scope of Section 254(2) of the IT Act is very limited and circumscribed to rectify the apparent mistake on the face of the record. Though if the assessee satisfy the Tribunal about the cause of none appearance then the ex-parte order passed by the Tribunal may be recalled however, in the absence of any mistake in the impugned order as well as any reasonable cause explained by the assessee, we do not find any justification in recalling the order.” MA No. 06/JP/2021 Shri Nitin Kumar Moyal vs. ITO 10 6. We note that there is a typographical mistake in the order dated 10.08.2020 disposing of MA No. 47/JP/2020 in recording the date of pronouncement which is type as 10.08.2019 instead of 10.08.2020. The date of pronouncement is correctly mentioned in the caption part of the order as 10.08.2020, therefore the typographical mistake in the order in respect of the date of pronouncement is hereby rectified and the same shall be read as 10.08.2020. 7. The assessee has now filed a second Misc. Application and seeking recalling order of the earlier orders however, once the misc. application filed by the assessee against the order disposing of the appeal U/s 254(1) of the Act the second misc. application is not maintainable being beyond the provisions of Section 254(2) of the IT Act. Even otherwise despite the repeated the misc. application the assessee has not filed a single document to explain the source of deposit of Rs. 1.06 crore in his bank account except the verbal stand that the said money belongs to one Shri Amit Goyal who has already denied the fact in his statement recorded by the Assessing Officer. Accordingly in the facts and circumstances of the case we do not find MA No. 06/JP/2021 Shri Nitin Kumar Moyal vs. ITO 11 any substance or merit in the present misc. application the same is liable to be dismissed. In the result, the M.A. of the assessee is dismissed. Order pronounced in the open court on 18/11/2021. Sd/- Sd/- ¼f oØ e f lag ; kno ½ ¼fot; iky jko½ (Vikram Singh Yadav) (Vijay Pal Rao) y s[kk lnL;@Accountant Member U; kf ;d lnL;@Judicial Member Tk; i qj@ Jaipur f nu kad @Dated:- 18/11/2021. *Santosh. v kns'k d h iz fr fyf i vx zsf ’k r@Copy of the order forwarded to: 1. v ihy kFkh Z @The Appellant- Shri Nitin Kumar Moyal, Sikar. 2. i z R; FkhZ @ The Respondent- ITO, Ward-1, Sikar. 3. v k;d j v k ;q Dr@ CIT 4. v k;d j v k ;q Dr@ CIT(A) 5. f oHk kx h; i zf rf uf /k] v k;d j v i hy h ; vf / kd j.k] t ; iq j@DR, ITAT, Jaipur. 6. x kMZ Qk bZy @ Guard File {MA No. 06/JP/2021} v kns'kk uq lk j@ By order, lg k; d i at hd k j@Asst. Registrar