M/s Jyoti Kapur, New Delhi V. DCIT, New Delhi

MA 65/DEL/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8683 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2000-2001
• Appeal Filed On: 09-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMARDR
• Assessee Lawyers: SUNIL ARORAAR
• Keywords: Opportunity of being heard; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI D BENC H BEFORE SHRI R.P. TOLANI , JM & SHRI A.N. PAHUJA, AM MISC. APPLICATION NO.65/DEL./2012 (IN ITA NO.1876/DEL/2011) ASSESSMENT YEAR:2000-01 MS. JYOTI KAPUR PROP. M/S ASCENT CREATION, B-80, DUGGAL COLONY, KHANPUR, NEW DELHI V/S . DCIT,CIRCLE-23(1), NEW DELHI [PAN : AAOPK 3085 D] (APPLICANT) (RESPONDENT) ASSESSEE BY SHRI SUNIL ARORA,AR REVENUE BY SHRI B.R.R. KUMAR,DR DATE OF HEARING 06-07-2012 DATE OF PRONOUNCEMENT 06 -07-2012 O R D E R A.N.PAHUJA:- THIS MISC. APPLICATION[MA] HAS BEEN FILED ON 9.3.2 012 AGAINST AN ORDER DATED 12-10-2011 OF THE TRIBUNAL I N ITA.NO.1876/DEL./2011 FOR THE AY 2000-01, DISMISSI NG THE APPEAL OF THE ASSESSEE, RELYING UPON THE DECISION OF DELHI BE NCH OF THE TRIBUNAL IN THE CASE OF MULTIPLAN INDIA (P) LTD. VS CIT 38 ITD 320 (DEL). 2 IN THE MISCELLANEOUS APPLICATION, THE ASSESSEE S UBMITTED THAT HIS COUNSEL SHRI DEEPAK BHARGAVA WAS HANDLING THE MATTER AND THE NOTICE FOR THE HEARING ON 12.10.11 RECEIVED ON 19 TH AUGUST, 2011 WAS PROMPTLY MAILED TO MR. DEEPAK BHARGAVA ON THE SAME DATE. I N TURN, SHRI DEEPAK BHARGAVA MAILED THE NOTICE TO SHRI SUNIL ARORA & AS SOCIATES, WITHOUT BEING AWARE THAT THE LATTER HAD CHANGED THEIR E-MAIL ID, RESULTING IN NON APPEARANCE BY MA N O.65 /DEL./2012 2 THE CONCERNED COUNSEL. WHILE REFERRING TO AFFIDAVI TS OF SHRI DEEPAK BHARGAVA & SHRI SUNIL ARORA, THE LD. AR REITERATED THEIR SUBMI SSIONS IN THE MISCELLANEOUS APPLICATION.. ACCORDINGLY, IT WAS PLEADED THAT IN THE INTEREST OF JUSTICE, EXPARTE ORDER MAY BE SET ASIDE IN ORDER TO AFFORD THE OPPOR TUNITY TO THE ASSESSEE TO PUT FORWARD ITS CASE ON MERITS BEFORE THE BENCH. THE LD . DR DID NOT OPPOSE THE MA. 3. AFTER HEARING THE PARTIES AND CONSIDERING THE FACTS OF THE CASE, WE ARE OF THE OPINION THAT THE DISPOSAL OF T HE APPEAL WAS IN VIOLATION OF THE PRINCIPLE OF ' AUDI ALTERAM PARTEM '. THE PRAYER IN SUCH A SITUATION FOR REHEARING THE APPEAL IS NOT A PRAYER TO REVIEW ITS EARLIER DECISION, RATHER IT IS TO SET ASIDE AN EX P ARTE ORDER AND FOR AFFORDING AN OPPORTUNITY OF BEING HEARD. THIS POWER IS INHERENT IN THE TRIBUNAL. POWER TO RECALL AN ORDER IS PRESCRIBE D IN TERMS OF R. 24 OF THE ITAT RULES, 1963, AND THAT TOO ONLY IN CASES WHERE THE ASSESSEE SHOWS THAT IT HAD A REASONABLE CAUSE FOR B EING ABSENT AT A TIME WHEN THE APPEAL WAS TAKEN UP AND WAS DECIDED E X PARTE. IN THIS CONNECTION, HONBLE GAUHATI HIGH COURT IN THE CASE OF RAJENDRA PRASAD BORAH VS ITAT AND OTHERS,302 ITR 243, RELYIN G UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CI T VS S.CHENNIAPPA MUDALIAR,74 ITR 41 AND THEIR OWN DECIS ION IN THE ASSAM TRIBUNE VS. CIT,285 ITR 452, HELD THAT APART FROM THE FACT THAT, SECTION 254( EARLIER SECTION 33)OF THE ACT MAKES IT INCUMBENT ON THE LEARNED TRIBUNAL TO DISPOSE OF THE APPEALS ON MERITS AS HAS BEEN ENUNCIATED BY THE APE X COURT IN CIT VS S.CHENNIAPPA MUDALIAR,74 ITR 41, RULE 24 AS IT S TANDS, PER SE DOES NOT EMPOWER THE LEARNED TRIBUNAL TO DISMISS AN APPEAL FOR DEFAULT IN THE ABSENCE OF THE APPELLANT. THE LEARNE D TRIBUNALS RELIANCE ON THE DECISION OF THE INCOME-TAX APPELLAT E TRIBUNAL, DELHI RENDERED IN CIT VS.MULTIPLAN INDIA(P) LTD.,38 ITD 3 20(DELHI) , IS APPARENTLY MISPLACED IN THE TEETH OF THE DECISION O F THE APEX COURT IN CIT VS S.CHENNIAPPA MUDALIAR,74 ITR 41. MA N O.65 /DEL./2012 3 4. IN THE LIGHT OF AFORESAID DECISION OF HONBLE GAUHATI HIGH COURT AND REASONS GIVEN BY THE APPLICANT, WE RECALL THE IMPUGNED ORDER DATED ORDER DATED 12.10.2011 OF THE ITAT AND DIREC T THE REGISTRY TO FIX THE MATTER FOR HEARING ON 12.11.2012. BOTH THE PARTIES WERE INFORMED IN THE OPEN COURT ACCORDINGLY. 5 IN THE RESULT, MISCELLANEOUS APPLICATION IS ALL OWED. SD/- SD/- (R.P. TOLANI) (A.N. PAHUJA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) NS COPY OF THE ORDER FORWARDED TO :- 1. ASSESSEE 2. DCIT,CIRCLE-23(1),NEW DELHI 3. CIT CONCERNED. 4. CIT(A)-XXIII, NEW DELHI 5. DR, ITAT,D BENCH, NEW DELHI 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, DELHI ORDER PRONOUNCED IN OPEN COURT