Tej Pal Singh, Haridwar V. ITO, Roorkee

MA 719/DEL/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2879 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 9 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 08-09-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 21-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PIYUSH KAMAL
• Keywords: Opportunity of being heard; Reasonable cause

Judgement Text

1 MA no. 719/Del/2018 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “H”: NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER M.A. No. 719/Del/2018 (In ITA no. 915/Del/2015) [Assessment Year: 2010-11] Sh. Tej Pal Singh, S/o Shri Dila Ram H.no. 101/14, Ganesh pur, Roorkee. PAN: AYNPS9526N Vs Income Tax Officer, Ward-2, Roorkee. APPLICANT RESPONDENT Assessee by Sh. D.K. Gandhi, Adv. & Sh. Piyush Kamal, Adv. Department by Sh. Anuj Garg, Sr. DR Date of hearing 09.09.2022 Date of pronouncement 09.09.2022 O R D E R PER KUL BHARAT, JM: This miscellaneous application has been preferred by the Assessee, seeking rectification of the order dated 16.05.2018 passed by the ITAT Delhi Bench “A” in ITA no. 915/Del/2015 for assessment year 2010-11. 2. Learned counsel for the assessee reiterated the submissions as made in the misc. application. For the sake of clarify the contentions of the assessee made in the misc. application are reproduced hereunder: “1. The captioned appeal filed by the appellant stands disposed off by an order dated 16 th of May' 2018 and a copy thereof, has been served by the 2 MA no. 719/Del/2018 applicant on 24.05.2018. A copy of the order of Hon'ble Tribunal is enclosed herewith as Annexure I (pages 4-6)of this application 2. It is submitted that the instant appeal of the assessee has been dismissed by the Hon'ble Tribunal in the aforesaid order has observed as under: "2. None appeared on behalf of the assessee despite notifying the date of hearing through registered post. It, therefore, appears that assessee is no more interested in prosecuting the appeal. Therefore, appeal of the assessee is liable to be dismissed. 3. In view of the above and having regard to Rule 19(2) of Income Tax Appellate Tribunal Rules and following various decisions of Delhi Bench of the Tribunal including that of Multiplan India Ltd., 38 ITD 320 (Del.); Hon'ble Madhya Pradesh High Court decision in the case of Estate of Late Tukojirao Holkar vs. CWT 223 ITR 480 (MP) , and also the decision of Hon'ble Supreme Court in the case of CIT vs. B. Bhattachargee & Another (118 ITR 461 at page 477-478) wherein their Lordships held that the appeal does not mean, mere filing of the memo of appeal but effectively pursuing the same, the appeal of the assessee is dismissed as un-admitted. 4. In the result, appeal of the assessee is dismissed." 4. It is submitted that the Hon'ble Tribunal has disposed off the appeal exparte without granting the assessee any opportunity of being heard on the ground that, no one appeared on behalf of assessee on the date of hearing i.e. 16.05.2018. It is respectfully submitted that, the assessee had not been served with notice in respect of the captioned appeal fixing the hearing. An Affidavit of the assessee is enclosed herewith as Annexure-II (pages 7) of this application. 5. It is submitted that on 24.05.2018, the counsel of assessee, Shri Piyush Kumar Kamal. had come to the Hon'ble Income Tax Appellate Tribunal to enquire about the pendency of the appeal. It was then learnt by him that the Hon'ble Tribunal had already heard the appeal. However, he filed vakalatnama dated 23.05.18 to received the copy of the order of the Hon'ble Tribunal. An Affidavit of the counsel of assessee is enclosed herewith as Annexure-III (pages 8-9) of this application. 6. It is therefore submitted that, there has been a miscarriage of justice in disposing of the appeal as the assessee has been deprived of an 3 MA no. 719/Del/2018 opportunity of being heard and, as such the order made deserves to be recalled in terms of Rule 24 of the Income Tax Rules' 1962. An opportunity of being heard is prayed for.” 3. An affidavit in support of the contentions is also filed. 4. Learned DR opposed the submissions and submitted that the assessee should have been vigilant in prosecuting the appeal. 5. We have heard rival submissions. It is stated by the assessee that the notice of hearing was not served upon the assessee. An affidavit has also been filed in this regard. Looking to the statement made in the affidavit, we are of the considered view that there was a reasonable cause for not appearing before the Tribunal. We, therefore, hereby recall our order dated 16.05.2018 in ITA no. 915/Del/2015 and direct the Registry to fix the hearing of the appeal in ITA no. 915/Del/2015 on 24 th Nov. 2022. 6. Assessee’s misc. application stands allowed. Order pronounced in open court on 09.09.2022. Sd/- Sd/- (PRADIP KUMAR KEDIA) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER *MP* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI