Shri Rikhab Chand Jain, JODHPUR V. ITO, SUMERPUR

MA 65/JODH/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1876 (ITAT-JODHPUR)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 13-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: N R MERTIA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER MA NOS. 64 & 65 /JU/2013 A/O ITA NOS. 441 & 442/JU/2011 [A.Y. 2008-09] SHRI RIKHAB CHAND JAIN VS. THE I.T.O STATION ROAD SUMERPUR SUMERPUR PAN NO: AASPJ 5018 R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI N.R. MERTIA DEPARTMENT BY : SHRI N.A. JOSHI, DR DATE OF HEARING : 28.03.2014 DATE OF PRONOUNCEMENT : 19.05.2014 ORDER PER HARI OM MARATHA, JM:- THESE MISCELLANEOUS APPLICATIONS ARISING OUT OF ORD ER DATED 23.03.2012 IN ITA NOS. 441 & 442/JU/2011 FOR A.Y. 2008- 09, HAVE BEEN FILED BY THE ASSESSEE. 2 2. BOTH THESE APPEALS WERE FILED BY THE ASSESSEE AN D ON THE DATE OF HEARING ON 21.3.2012, AN ADJOURNMENT APPLIC ATION WAS FILED BY THE ASSESSEE WHICH WAS REJECTED AND THE AP PEALS WERE HEARD EXPARTE AND ORDERS WERE PASSED THEREIN ON 23. 3.2012. AGAINST THESE ORDERS, THE ASSESSEE HAS FILED APPLIC ATION U/S 254(2) OF THE INCOME-TAX ACT, 1961 ['THE ACT', FOR SHORT] SUBMITTING THAT THERE IS A PATENT AND GLARING MISTA KE IN THE TRIBUNAL ORDER IN AS MUCH AS GROUND NOS. 2 AND 3 CO ULD NOT BE DECIDED AND REMAINED UNDECIDED. IT WAS STATED THAT BOTH THE GROUNDS GO TO THE ROOT OF THE MATTER AND IN THE LIG HT OF THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT I N THE CASE OF CIT VS. RAMESH CHANDRA MODI [2001] 279 ITR 322 [RAJ ] WHEREIN IT HAS BEEN HELD THAT IF ANY GROUNDS REMAINED UNDEC IDED IN THE APPEAL, IT WOULD AMOUNT TO A MISTAKE APPARENT ON RE CORD. ON THE DATE OF HEARING THE ADJOURNMENT APPLICATION WAS FILED. 3. THE LD. D.R. DID NOT RAISE ANY SERIOUS OBJECTION . 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CA REFULLY GONE THROUGH THE ENTIRE MATERIAL AVAILABLE ON RECOR D. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE APPEA LS OF THE 3 ASSESSEE WERE HEARD EX-PARTE QUA THE ASSESSEE. RUL E 25 OF THE IT[AT] RULES, 1963 PROVIDES AS UNDER : 25. HEARING OF APPEAL EX-PARTE FOR DEFAULT BY THE RESPONDENT. WHERE, ON THE DAY FIXED FOR HEARING OR ANY OTHER D AY TO WHICH THE HEARING MAY BE ADJOURNED, THE APPELLAN T APPEARS AND THE RESPONDENT DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORISED REPRESENTATIVE WHEN THE APPEAL IS CALLED ON FOR HEARING, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE APPELLANT: PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVIDED ABOVE AND THE RESPONDENT APPEARS AFTERWARDS AND SAT ISFIES THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NO N-APPEARANCE WHEN THE APPEAL WAS CALLED ON FOR HEARING, THE TRIB UNAL SHALL MAKE AN ORDER SETTING ASIDE THE EX-PARTE ORDER AND RESTORE THE APPEAL. IN THE PRESENT CASE, THE APPEALS OF THE ASSESSEE WE RE HEARD IN THE ABSENCE OF THE ASSESSEE. WE, THEREFORE, BY KEE PING IN VIEW THE PROVISIONS CONTAINED IN RULE 25 OF THE IT[ AT] RULES, 1963, AS WELL AS THE DECISION OF THE HON'BLE RAJAST HAN HIGH COURT [SUPRA] ARE IN AGREEMENT WITH THE GROUNDS RAI SED IN THESE PETITIONS THAT NON DISPOSAL OF MATERIAL GROUN DS OR FOR THAT MATTER ANY GROUND DOES AMOUNT TO MISTAKE APPAR ENT ON 4 RECORD WHICH IS SO GLARING AND APPARENT THAT IT NEE DS TO BE RECTIFIED UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. ACCORDINGLY, WE RECALL THE ORDER DATED 23.03.2012 A ND THE REGISTRY IS DIRECTED TO REFIX THE CASE I.E. APPEALS OF THE ASSESSEE FOR FRESH HEARING ON 11.6.2014. 5. IN THE RESULT, THE MAS OF THE ASSESSEE ARE ALLOW ED. [ORDER PRONOUNCED IN THE COURT ON MAY, 2014. ] SD/- SD/- [N.K. SAINI] [HARI OM MARATHA] JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 19 TH MAY, 2014. VL/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR 6.