M/s Chatta Sugar Co. Ltd, Mathura V. A.C.I..T Circle-3, Mathura

MA 7/AGR/2018

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 6827 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 3 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-05-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 30-05-2024
• Assessment Year: 2009-2010
• Appeal Filed On: 20-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE: SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER AND SHRI P.C. YADAV, JUDICIAL MEMBER M.A. No. 07/Agr/2018 (in ITA No. 129/Agr/2015 Chatta Sugar Company Ltd., Tehsil Chatta, Distt. Mathura. PAN: AAACC8388C v. ACIT, Circle-3, Mathura. (Appellant) (Respondent) Assessee by : None Revenue by : Sh. Shailendra Srivastava, Sr. DR Date of hearing : 31.05.2024 Date of Pronouncement: 31.05.2024 ORDER PER RAMIT KOCHAR, AM: This Miscellaneous Application bearing No. 07/Agr/2018 arising out of ITA No. 129/Agr/2015, has been filed by the assessee seeking recall of the ex parte order passed by the Tribunal in ITA No. 129/Agr/2015 for the assessment year 2009-10 vide order dated 07.12.2017. 2. Miscellaneous application filed by the assessee states that the Tribunal has dismissed ex parte in limine the appeal of assessee in ITA M.A. No. 07/Agr/2018 2 No. 129/Agr/2015 for the reason that nobody appeared on behalf of the assessee and no adjournment application was filed. Hence, it was dismissed by the Tribunal by relying upon various orders of Hon’ble High Courts and Hon’ble Supreme Court, wherein the appeals filed by the assessees stood dismissed for non-prosecution. It is further stated that the Tribunal is not justified in concluding that the assessee is not interested in prosecuting its appeal. The assessee is keen to get its appeal disposed of on merits. Assessee has also stated that the appeal of the assessee was fixed for hearing on 04.12.2017, but the counsel of the assessee was not available on that date and the assessee filed application for adjournment on 25.11.2017. Copy of adjournment application as well as speed post receipt is filed by the assessee. It was further submitted that there was no communication received for fixing the appeal on 07.12.2017, hence, the assessee did not appear on 07.12.2017. It is further submitted that the order was passed by the Tribunal on the same day after hearing the matter on 07.12.2017 by passing ex parte order, which is not justified keeping in view Rule 19 and 20 of Income-tax Appellate Tribunal Rules. Assessee has also relied upon judgment of Hon’ble Madras High Court in S. Velu Palandar M.A. No. 07/Agr/2018 3 vs. DCIT (1972) 83 ITR 783 (Mad) and Hon’ble Rajasthan High Court in the case of Tribhuwan Kumar & Ors. Vs. CIT reported in (2007) 294 ITR 401. The assessee also relied upon the order of Hon’ble Allahabad High Court in the case of Mayur Sheetgrah (P) Ltd. vs. CIT in ITA No. 164 of 2013. In nutshell, assessee has submitted that the assessee is very keen to get its appeal disposed of on merits and a prayer is made to recall the ex parte order dated 07.12.2017 passed in ITA No.129/Agr/2015. 3. When this MA came up for hearing before the Division Bench, none appeared on behalf of the assessee. No adjournment application has been filed. Ld. Sr. DR submitted that the Tribunal has decided the appeal ex parte in limine without discussing the issues on merits and the department has no objection if the ex parte order of Tribunal dated 07.12.2017 is recalled. 4. We have considered contentions of ld. Sr. DR and perused the material on record. We have observed that the Tribunal vide order dated 07.12.2017 in ITA No. 129/Agr/2015 has dismissed the appeal of the assessee ex parte in limine without discussing the issues on merits on the ground of non-prosecution and the Tribunal has also stated in para 3 M.A. No. 07/Agr/2018 4 that the assessee may, however, get it revived by showing sufficient cause for non-appearance. Order of the Tribunal is reproduced hereunder : 2. When the appeal was called out for hearing, none appeared on behalf of the assessee, nor any application for adjournment has been filed. We find that proper notice of hearing has already been sent to the assessee, which have not returned unserved. Under these circumstances, it appears that the assessee is not interested in prosecuting the appeal any further. As such, we hold that the appeal is liable to be dismissed for non prosecution. In this regard we place reliance upon the following case laws: 1. CIT vs. Multiplan India Ltd. 38 ITD 320 (Del) 2. Estate of Late Tukojirao Holkar vs. CWT 223 ITR 480 (M.P.) 3. New Diwan Oil Mills vs. CIT (2008) 296 ITR 495 (P& H) 4. CIT vs. B. N. Bhattachargee And Another 118 ITR 461(SC) 3. Respectfully following the view taken in the cases cited (supra), we dismiss the appeal filed by the assessee for non prosecution. The assessee may, however, get it revived by showing sufficient cause for non-appearance. 4. In the result, the appeal filed by the assessee is dismissed.” 5. In the miscellaneous application, prayer has been made to recall the ex parte order passed by the Tribunal without discussing the issues on merits, by exercising powers vested u/s. 254(2) read with proviso to Rule 24 of the Appellate Tribunal Rules, 1963. The assessee has also filed copy of adjournment application along with speed post receipt bearing No. SP 1100020103 (ED418726960IN) dated 25.11.2017, in M.A. No. 07/Agr/2018 5 which the assessee has sought adjournment on the date of hearing on 04.12.2017 in ITA No. 129/Agr/2015 on the ground that counsel of the assessee is busy in the marriage function and hence, not able to attend the hearing. Assessee has also filed an affidavit affirming that the contents of para 1 to 11 of the accompanying miscellaneous application are true and correct to the best of his knowledge and belief and nothing has been concealed or misstated therein. The department has no objection if the ex parte order dated 07.12.2017 passed in ITA No.129/Agr/2015 is recalled. On perusal of the records, it is found that the appeal was fixed for hearing before the Tribunal on 07.12.2017 and not on 04.12.2017 as stated in the miscellaneous application. It appears that there is some confusion with the assessee as to the actual date of hearing before the Tribunal. In any case, the notice dated 22.11.2017 issued by dispatch No. 2093 dated 22.11.2017 is placed on record in file. In any case, the assessee has averred that it has filed the adjournment application for 04.12.2017 and was not aware of the date of hearing on 07.12.2017. Further, the Tribunal has passed the order ex parte in limine without discussing the issues on merits. Department has no objection if the appeal in ITA No. 129/Agr/2015 is restored. The M.A. No. 07/Agr/2018 6 assessee has shown sufficient cause for non-appearance, as the adjournment application was sent for 04.12.2017. Thus, keeping in view overall facts of the case and in the interest of justice and fairness to the parties, we allow the MA filed by the assessee and recall the order dated 07.12.2017 in ITA No. 129/Agr/2015 for the assessment year 2009-10, which is now fixed for hearing before the Division Bench on 10.07.2024. Date was announced in the open court and ld. Sr. DR has noted the date of hearing. Since the assessee has not appeared before the Tribunal on 31.05.2024 when this MA was called for hearing, Registry is directed to issue notice by RPAD/email for the date of hearing on 10.07.2024 before the Division Bench. 6. In the result, MA filed by the assessee is allowed. Order pronounced in the open court on 31.05.2024 on conclusion of hearing and is reduced in writing and signed on 03.06.2024. Sd/- Sd/- (P.C. YADAV) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 03.06.2024 *aks/-