Shri Rajnikant Vrajlal Chokshi(HUF), Surat V. The Income tax Officer,Ward-8(4), Surat

MA 66/AHD/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6495 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 09-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MEENA
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'D' BEFORE SHRI MUKUL SHRAWAT, JUDICIAL MEMBER AND SHRI A N PAHUJA, ACCOUNTANT MEMBER M A NO.66/AHD/2011 [IN ITA NO.4416/AHD/2007 (ASSESSMENT YEAR:-2001-02) RAJNIKANT VRAJLAL CHOKSHI- HUF, A/53,-54, BHULABHAI PARK, LAXMINARAYAN ASHRAM ROAD, SURAT V/S INCOME-TAX OFFICER, WARD- 8(4), SURAT PAN: AABHC 6682 F [APPLICANT] [ORIGINAL APPELLANT] [RESPONDENT] [ORIGINAL RESPONDENT] M A NOS.67 & 71/AHD/2011 [IN ITA NO.4417/AHD/2007 &] [ITA NO.471/AHD/2009] (ASSESSMENT YEARS:-2001-02 & 2002-03) ANAND KANTILAL CHOKSHI- HUF, 4, VISHWAKARMA SOCIETY, VASTA DEVDI ROAD, SURAT V/S THE INCOME-TAX OFFICER, WARD-9(1), SURAT PAN: AABHC 5183 M [APPLICANT] [ORIGINAL APPELLANT] [RESPONDENT] [ORIGINAL RESPONDENT] M A NO.68/AHD/2011 [IN ITA NO.4418/AHD/2007 (ASSESSMENT YEAR:-1999-2000) NAVINCHANDRA V CHOKSHI- HUF, 5, VISHWAKARMA SOCIETY, VASTA DEVDI ROAD, SURAT V/S THE INCOME-TAX OFFICER, WARD-9(3), SURAT PAN: AABHC 5160 M [APPLICANT] [ORIGINAL APPELLANT] [RESPONDENT] [ORIGINAL RESPONDENT] M A NO.69/AHD/2011 [IN ITA NO.4419/AHD/2007 (ASSESSMENT YEAR:-2001-02) KAMLESH RAJNIKANT CHOKSHI-HUF, 5, VISHWAKARMA SOCIETY, VASTA DEVDI ROAD, SURAT V/S THE INCOME-TAX OFFICER, WARD-8(4), SURAT 2 MA NOS.66 TO 71/AHD/2011 PAN: AAEHK 2140 R [APPLICANT] [ORIGINAL APPELLANT] [RESPONDENT] [ORIGINAL RESPONDENT] M A NO.70/AHD/2011 [IN ITA NO.4420/AHD/2007 (ASSESSMENT YEAR:-2001-02) KANTILAL VRAJLAL CHOKSHI- HUF, B-51, BHULABHAI PARK, LAXMINARAYAN ASHRAM ROAD, KATARGAM, SURAT V/S THE INCOME-TAX OFFICER, WARD-9(2), SURAT PAN: AABHC 5169 F [APPLICANT] [ORIGINAL APPELLANT] [RESPONDENT] [ORIGINAL RESPONDENT] APPLICANTS BY :- SHRI RAJESH M UPADHYAY, AR REVENUE BY:- SHRI S K MEENA, SR. DR O R D E R A N PAHUJA: THESE SIX MISC. APPLICATIONS[MAS] HAVE BEEN FILED ON 9.5.2011 AGAINST AN ORDER DATED 28.3.2011 OF THE TR IBUNAL IN THE CASE OF AFORESAID FIVE ASSESSES FOR THE ASSESSMENT YEARS 2001-02 & 2002-03, DISMISSING THE APPEAL OF THE ASSESSEE, R ELYING UPON THE DECISION OF DELHI BENCH OF THE TRIBUNAL IN THE CASE OF MULTIPLAN INDIA (P) LTD. VS CIT 38 ITD 320 (DEL). 2. IN THEIR MAS, THESE ASSESSEES SUBMITTED THAT IN THEI R CASE, THEIR AR HAD PREPARED AN ADJOURNMENT PETITION TO BE FILED BEFORE THE HONORABLE BENCH ON WHICH THEY HAD PUT THEIR RESPECTIVE SIGNATURES. HOWEVER , LD. AR MADE AN ERROR IN MENTIONING DATE OF HEARING IN THE ADJOURNMENT PE TITION AS 29.3.2011 INSTEAD OF 28.3.2011 AND THEREFORE, THE SAID APPLICATION WAS FILE D ONLY ON 28.3.2011 AT 5.10PM. CONSEQUENTLY. THEIR APPEALS WERE DECIDED WITHO UT GIVING ANY OPPORTUNITY TO FILE A PAPER BOOK OR TO ARGUE THE CASE THROUGH AN AR. ACCORDINGLY, WHILE REFERRING TO A DECISION IN THE CASE OF CIT VS. AN SAL HOUSING & CONSTRUCTION LTD. (140 TAXMAN 297) (DEL) , THESE ASSESSEES REQUESTED F OR AN OPPORTUNITY TO 3 MA NOS.66 TO 71/AHD/2011 PRESENT THEIR CASE THROUGH AR AND THEREFORE, PRAYED FOR RECALLING OF THE AFORESAID EX-PARTE ORDER DATED 28.3.2011. 3. THE LD. AR ON BEHALF OF THE ASSESSEE MERELY REITE RATED WHAT IS MENTIONED IN THE MA WHILE THE LD. DR DID NOT OPPOSE THE MA. 4. AFTER HEARING THE PARTIES AND CONSIDERING THE FACT S OF THE CASE AS ALSO THE AFORESAID REQUEST FOR ADJOURNMENT FILED ON 28. 3.2011 AT 5.10 PM, WE ARE OF THE OPINION THAT THE DISPOSAL OF THESE APPEALS WAS IN VIOLATION OF THE PRINCIPLE OF ' AUDI ALTERAM PARTEM '. THE PRAYER IN SUCH A SITUATION FOR REHEARING THESE APPEALS IS NOT A PRAYER TO REVIEW ITS EARLIER DECISION, RATHER IT IS TO SET ASIDE AN EX PARTE ORDER AND FOR AFFORDING AN OPPORTUNITY OF BEING HEA RD. THIS POWER IS INHERENT IN THE TRIBUNAL. POWER TO RECALL AN ORDER IS PRESCRIBED 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 BEING ABSENT AT A TIME WHEN THE A PPEAL WAS TAKEN UP AND WAS DECIDED EX PARTE. IN THIS CONNECTION, HONBLE GAU HATI HIGH COURT IN THE CASE OF RAJENDRA PRASAD BORAH VS ITAT AND OTHERS,302 IT R 243, RELYING UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CI T VS S.CHENNIAPPA MUDALIAR,74 ITR 41 AND THEIR OWN DECISION IN THE ASSAM TRIBUNE VS. CIT,285 ITR 452, HELD THAT APART FROM THE FACT THAT, SECTION 254(EA RLIER SECTION 33)OF THE ACT MAKES IT INCUMBENT ON THE LEARNED TRIBUNAL TO DISPOSE OF THE AP PEALS ON MERITS AS HAS BEEN ENUNCIATED BY THE APEX COURT IN CIT VS S.CHENNIAP PA MUDALIAR,74 ITR 41, RULE 24 AS IT STANDS, PER SE DOES NOT EMPOWER THE LEARNE D TRIBUNAL TO DISMISS AN APPEAL FOR DEFAULT IN THE ABSENCE OF THE APPELLANT. THE LEARNED TRIBUNALS RELIANCE ON THE DECISION OF THE INCOME-TAX APPELLATE TRIBUNAL, D ELHI RENDERED IN CIT VS.MULTIPLAN INDIA(P) LTD.,38 ITD 320(DELHI) , IS APP ARENTLY MISPLACED IN THE TEETH OF THE DECISION OF THE APEX COURT IN CIT VS S.CHENNIAPPA MUDALIAR,74 ITR 4 1. 5. IN THE LIGHT OF AFORESAID DECISION OF HONBLE GA UHATI HIGH COURT AND REASONS GIVEN BY THE AFORESAID APPLICANTS, WE RECALL THE IMPUG NED ORDER DATED ORDER DATED 28.3.2011 OF THE ITAT AND DIRECT THE REGISTRY T O FIX THE MATTER FOR HEARING ON 28.9.2011. BOTH THE PARTIES WERE INFORMED IN THE OPEN COURT ACCORDINGLY. 4 MA NOS.66 TO 71/AHD/2011 6 IN THE RESULT, THESE SIX MISCELLANEOUS APPLICATIONS ARE A LLOWED ORDER PRONOUNCED IN THE COURT TODAY ON 29-07-2011 SD/- SD/- ( MUKUL SHRAWAT ) JUDICIAL MEMBER ( A N PAHUJA ) ACCOUNTANT MEMBER DATED : 29-07-2011 COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT ASSESSEES 2. INCOME-TAX OFFICER, WARD-8(4),WARD-9(1), WARD-9( 2) AND WARD-9(3), SURAT 3. CIT CONCERNED 4. CIT(A)-V,SURAT 5. DR, ITAT, AHMEDABAD BENCH-D, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD