Anmol Marmo Grani Private Ltd., RAJSAMAND V. ITO, RAJSAMAND

MA 7/JODH/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9748 (ITAT-JODHPUR)
• Duration Of Justice: 2 year(s) 6 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-12-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 21-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KONKANI
• Assessee Lawyers: G K GARGIA
• Keywords: Reasonable cause

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 M.A. NO. 07/JU/2011 (IN ITA NO.30 /JU/2009) ASSESSMENT YEAR : 2001-02 M/S ANMOL MARMO GRANI PRIVATE LTD., VS THE ITO, RAJSAMAND WARD-1, RAJSMAND PAN NO. AACCA8822D (APPELLANT) (RESPONDENT) APPELLANT BY : S/SHRI AMIT KOTHARI & G.K. GARGIA RESPONDENT BY : SHRI G.R. KONKANI DATE OF HEARING : 11.12.2012 DATE OF PRONOUNCEMENT : 18.12.2012 ORDER PER N.K.SAINI, A.M. THIS MISC. APPLICATION FILED BY THE ASSESSEE IS ARI SING OUT OF EX.PARTE ORDER DATED 23.7.2009 OF ITAT, JODHPUR BENCH PASSED IN ITA NO.30/JU/2009. 2. IN THE MISC. APPLICATION, THE ASSESSEE HAS STATE D AS UNDER:- 1. THE APPEAL IN THE CASE OF ASSESSEE WAS DECIDED I N ITA NO.30/JU/2009 VIDE ORDER DATED 23.7.2009. THE HON'B LE TRIBUNAL HOWEVER DECIDED THE SAID APPEAL EX-PARTE, ON THE GROUND THAT NONE WAS PRESENT FOR ASSESSEE ON THE DA TE OF 2 HEARING OF APPEAL AND BY DEPARTMENT APPEAL WAS DECI DED WITHOUT OPPORTUNITY OF HEARING TO THE ASSESSEE. 2. IT IS RESPECTFULLY SUBMITTED THAT NOTICE FOR HEA RING WAS NOT RECEIVED BY THE APPELLANT AND IN THESE CIRCUMST ANCES, THE ASSESSEE WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE FROM APPEARING BEFORE THE HON'BLE TRIBUNAL ON THE A PPOINTED DATE. 3. IN THESE CIRCUMSTANCES, IT IS REQUESTED THAT THE SAID APPEAL SUBMITTED BY THE APPELLANT MAY KINDLY BE RECALLED AND BE DECIDED ON MERITS OF THE CASE. 4. IT IS RESPECTFULLY SUBMITTED THAT FOR THE SAME A SSESSMENT YEAR, ASSESSEE HAD ALSO SUBMITTED AN APPEAL AGAINST THE SAME ORDER OF ID. CIT(A) DATED 14.11.2008 AND THE ISSUE INVOLVED IS COMMON IN THE APPEAL SUBMITTED BY THE APPELLANT AND THE APPEAL SUBMITTED BY THE DEPARTMENT. THESE APPEALS HAD BEEN NOT BEEN DECIDED SIMULTANEOUSLY. SUCH FACT COULD NOT PERHAPS WAS BROUGHT TO THE NOTICE OF THE HON'BL E BENCH AT THE TIME OF HEARING AND THEREFORE WOULD AFFECT THE APPEAL SUBMITTED BY THE APPELLANT. 5. IT IS THEREFORE VERY HUMBLY PRAYED THAT ORDER PA SSED IN ITA NO. 30/JU/2009 VIDE ORDER DT. 23.7.2009 MAY KIN DLY BE RECALLED. 3 3. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE REITERATED THE AFORESAID SUBMISSIONS MADE IN THE MI SC. APPLICATION AND REQUESTED TO RECALL THE ORDER. 4. IN HIS RIVAL SUBMISSIONS, THE LD DR STATED THAT THE ITAT HAS DECIDED THE APPEAL OF THE DEPARTMENT ON MERITS, THEREFORE, THE ORDER MAY NOT BE RECALLED. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THOUGH THE MATERIAL AVAILABLE ON RECORD. IN T HE PRESENT CASE, THE APPEAL OF THE ASSESSEE IN ITA NO. 30/JU/2009 WAS DE CIDED EX.PARTE. THE ASSESSEE HAS STATED THAT NOTICE OF HEARING WAS NOT RECEIVED, SO IT WAS PREVENTED BY SUFFICIENT AND REASONABLE CAUSE FROM A PPEARING BEFORE THE TRIBUNAL ON THE APPOINTED DATE. IT IS ALSO STATED THAT THE DEPARTMENTAL APPEAL WAS DECIDED EX. PARTE QUA THE ASSESSEE WHIL E THE APPEAL OF THE ASSESSEE AGAINST THE SAME ORDER OF LD CIT(A) DATED 14.11.2008 HAVING A COMMON ISSUE WAS PENDING. THIS FACT PERHAPS WAS NO T BROUGHT TO THE NOTICE OF THE ITAT. THE ASSESSEE HAD ALSO FILED AN AFFIDAVIT IN SUPPORT OF ITS MISC. APPLICATION, WHICH IS PLACED ON RECORD 6. IN OUR OPINION, IF BOTH THE PARTIES HAVE FILED T HE CROSS APPEALS, THOSE APPEALS ARE TO BE DECIDED SIMULTANEOUSLY. IN THE P RESET CASE, THE ASSESSEE CLAIMED THAT THE NOTICE OF HEARING WAS NOT RECEIVED , THEREFORE, THERE WAS A REASONABLE CAUSE OF NON-APPEARANCE. IT IS ALSO NOT ICED THAT THE NOTICE OF HEARING FOR 30.6.2009 WAS DIRECTED TO BE SERVED THR OUGH DEPARTMENT AND ON 4 THE COPY OF THE NOTICE, THERE IS SIGNATURES OF THE INSPECTOR OF THE INCOME TAX, WARD- RAMESH KUMAR SHARMA AND NASIR KHAN PATHA N. HOWEVER, IT IS NOT CLEAR AS TO WHETHER THE NOTICE WAS SERVED UPON THE ASSESSEE PARTICULARLY WHEN IT IS NOT MENTIONED IN WHAT CAPACITY SHRI NASI R KHAN HAD PUT HIS SIGNATURES ON THE COPY OF THE NOTICE DATED 9.6.200 9. CONSIDERING THE TOTALITY OF FACTS AS NARRATED HEREIN ABOVE AND ALSO THE PROVISIONS CONTAINED IN PROVISO TO RULE 25 OF THE APPELLATE TRIBUNAL RUL ES, 1963, WE RECALL THE EX. PARTE ORDER DATED 23.3.2009 OF THE TRIBUNAL PAS SED IN ITA NO. 30/JU/2009 FOR THE ASSESSMENT YEAR 2001-02 AND REGI STRY IS DIRECTED TO RE- FIX THE CASE IN DUE COURSE. 7. IN THE RESULT, THE MISC. APPLICATION BY THE ASSE SSEE IS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT 18.12.2012) SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 18 TH DECEMBER, 2012 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSISTANT REGISTRAR